exv4w1





Exhibit 4.1






LEAP WIRELESS INTERNATIONAL, INC.




and




WELLS FARGO BANK, N.A.




Trustee

 





Indenture




Dated as of June 25, 2008

 






4.50% Convertible Senior Notes due 2014




 









 





Certain Sections of this Indenture relating to Sections 310 through 318 of the

Trust Indenture Act of 1939:




	 	 	 
	Trust Indenture Act Section	 	Indenture Section
	§ 310(a)(1)
	 	6.09
	(a)(2)
	 	6.09
	(a)(3)
	 	Not Applicable
	(a)(4)
	 	Not Applicable
	(b)
	 	6.08
	 
	 	6.10
	§ 311(a)
	 	6.13
	(b)
	 	6.13
	§ 312(a)
	 	7.01
	 
	 	7.02(a)
	(b)
	 	7.02(b)
	(c)
	 	7.02(c)
	§ 313(a)
	 	7.03(a)
	(a)(4)
	 	1.01
	 
	 	7.03(a)
	(b)
	 	7.03(a)
	(c)
	 	7.03(a)
	(d)
	 	7.03(a)
	§ 314(a)
	 	7.04
	(b)
	 	Not Applicable
	(c)(1)
	 	1.02
	(c)(2)
	 	1.02
	(c)(3)
	 	Not Applicable
	(d)
	 	Not Applicable
	(e)
	 	1.02
	§ 315(a)
	 	6.01
	(b)
	 	6.02
	(c)
	 	6.01
	(d)
	 	6.01
	(e)
	 	5.14
	§ 316(a)
	 	1.01
	(a)(1)(A)
	 	5.02
	 
	 	5.12
	(a)(1)(B)
	 	5.13
	(a)(2)
	 	Not Applicable
	(b)
	 	5.08
	(c)
	 	1.04(c)
	§ 317(a)(1)
	 	5.03
	(a)(2)
	 	5.04
	(b)
	 	10.03
	§ 318(a)
	 	1.07





Note: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the
Indenture.




 









 






	 	 	 	 	 
	ARTICLE 1
	 	 	 	 
	Definitions and Other Provisions of General Application
	 	 	 	 
	 
	 	 	 	 
	Section 1.01.  Definitions

	 	 	1	 
	Section 1.02.  Compliance Certificates and Opinions

	 	 	13	 
	Section 1.03.  Form of Documents Delivered to Trustee

	 	 	13	 
	Section 1.04.  Acts of Holders; Record Dates

	 	 	14	 
	Section 1.05.  Notices, Etc., to Trustee and Company

	 	 	15	 
	Section 1.06.  Notice to Holders; Waiver
	 	 	16	 
	Section 1.07.  Conflict With Trust Indenture Act

	 	 	16	 
	Section 1.08.  Effect of Headings and Table of Contents

	 	 	16	 
	Section 1.09.  Successors and Assigns

	 	 	16	 
	Section 1.10.  Separability Clause

	 	 	16	 
	Section 1.11.  Benefits of Indenture

	 	 	17	 
	Section 1.12.  Governing Law

	 	 	17	 
	Section 1.13.  Legal Holidays

	 	 	17	 
	Section 1.14.  Indenture May Be Executed in Counterparts

	 	 	17	 
	Section 1.15.  Acceptance of Trust

	 	 	17	 
	Section 1.16.  No Personal Liability of Directors, Officers, Employees and Stockholders

	 	 	17	 
	 
	ARTICLE 2
	 	 	 	 
	Security Forms
	 	 	 	 
	 
	 	 	 	 
	Section 2.01.  Forms Generally

	 	 	18	 
	Section 2.02.  Form of Face of Security

	 	 	18	 
	Section 2.03.  Form of Reverse of Security

	 	 	21	 
	Section 2.04.  Form of Legend for Global Securities

	 	 	25	 
	Section 2.05.  Form of Notice of Conversion

	 	 	25	 
	Section 2.06.  Form of Assignment

	 	 	26	 
	Section 2.07.  Form of Trustee’s Certificate of Authentication

	 	 	28	 
	Section 2.08.  Form of Fundamental Change Repurchase Notice

	 	 	28	 
	Section 2.09. Legend on Restricted Securities

	 	 	29	 
	 
	ARTICLE 3
	 	 	 	 
	The Securities
	 	 	 	 
	 
	 	 	 	 
	Section 3.01.  Title and Terms; Principal and Interest

	 	 	29	 
	Section 3.02.  Denominations

	 	 	31	 
	Section 3.03.  Global Securities; Non-global Securities; Book-entry Provisions

	 	 	31	 
	Section 3.04.  Execution, Authentication, Delivery and Dating

	 	 	33	 
	Section 3.05.  Temporary Securities

	 	 	34	 






i









 






	 	 	 	 	 
	Section 3.06.  Registrar, Registration of Transfer and Exchange; Paying Agent
	 	 	35	 
	Section 3.07.  Mutilated, Destroyed, Lost and Stolen Securities

	 	 	38	 
	Section 3.08.  Payment of Interest; Interest Rights Preserved

	 	 	39	 
	Section 3.09.  Persons Deemed Owners

	 	 	39	 
	Section 3.10.  Cancellation and Transfer Provisions

	 	 	40	 
	Section 3.11.  CUSIP Numbers

	 	 	42	 
	Section 3.12.  Computation of Interest

	 	 	42	 
	Section 3.13.  Special Record Date

	 	 	42	 
	 
	ARTICLE 4
	 	 	 	 
	Satisfaction And Discharge
	 	 	 	 
	 
	 	 	 	 
	Section 4.01.  Satisfaction and Discharge of Indenture

	 	 	43	 
	Section 4.02.  Application of Trust Money

	 	 	44	 
	 
	ARTICLE 5
	 	 	 	 
	Remedies
	 	 	 	 
	 
	 	 	 	 
	Section 5.01.  Events of Default

	 	 	45	 
	Section 5.02.  Acceleration of Maturity; Rescission and Annulment

	 	 	46	 
	Section 5.03.  Collection Suits by Trustee

	 	 	48	 
	Section 5.04.  Trustee May File Proofs of Claim

	 	 	48	 
	Section 5.05.  Trustee May Enforce Claims Without Possession of Securities

	 	 	49	 
	Section 5.06.  Application of Money Collected

	 	 	49	 
	Section 5.07.  Limitation on Suits

	 	 	49	 
	Section 5.08.  Unconditional Right of Holders to Receive Principal and Interest and to Convert

	 	 	50	 
	Section 5.09.  Restoration of Rights and Remedies

	 	 	50	 
	Section 5.10.  Rights and Remedies Cumulative

	 	 	51	 
	Section 5.11.  Delay or Omission Not Waiver

	 	 	51	 
	Section 5.12.  Control by Holders

	 	 	51	 
	Section 5.13.  Waiver of Past Defaults

	 	 	51	 
	Section 5.14.  Undertaking for Costs

	 	 	52	 
	Section 5.15.  Waiver of Stay or Extension Laws

	 	 	52	 
	 
	ARTICLE 6
	 	 	 	 
	The Trustee
	 	 	 	 
	 
	 	 	 	 
	Section 6.01.  Certain Duties and Responsibilities

	 	 	52	 
	Section 6.02.  Notice of Defaults

	 	 	53	 
	Section 6.03.  Certain Rights of Trustee

	 	 	53	 
	Section 6.04.  Not Responsible for Recitals or Issuance of Securities

	 	 	54	 
	Section 6.05.  May Hold Securities

	 	 	54	 
	Section 6.06.  Money Held in Trust

	 	 	55	 
	Section 6.07.  Compensation and Reimbursement

	 	 	55	 






ii









 







	 	 	 	 	 
	Section 6.08. Disqualification; Conflicting Interests

	 	 	55	 
	Section 6.09. Corporate Trustee Required; Eligibility

	 	 	55	 
	Section 6.10. Resignation and Removal; Appointment of Successor

	 	 	56	 
	Section 6.11. Acceptance of Appointment by Successor

	 	 	57	 
	Section 6.12. Merger, Conversion, Consolidation or Succession to Business

	 	 	57	 
	Section 6.13. Preferential Collection of Claims Against Company

	 	 	58	 
	Section 6.14. Appointment of Authenticating Agent

	 	 	58	 
	 
	ARTICLE 7
	 	 	 	 
	Holders’ Lists And Reports By Trustee And Company
	 	 	 	 
	 
	 	 	 	 
	Section 7.01. Company to Furnish Trustee Names and Addresses of Holders

	 	 	60	 
	Section 7.02. Preservation of Information; Communications to Holders

	 	 	60	 
	Section 7.03. Reports by Trustee

	 	 	60	 
	Section 7.04. Reports by Company

	 	 	61	 
	 
	ARTICLE 8
	 	 	 	 
	Consolidation, Merger, Conveyance, Transfer Or Lease
	 	 	 	 
	 
	 	 	 	 
	Section 8.01. Company May Consolidate, Etc., Only on Certain Terms

	 	 	62	 
	Section 8.02. Successor Substituted

	 	 	62	 
	 
	ARTICLE 9
	 	 	 	 
	Modification And Amendment
	 	 	 	 
	 
	 	 	 	 
	Section 9.01. Supplemental Indentures Without Consent of Holders

	 	 	63	 
	Section 9.02. Supplemental Indentures with Consent of Holders

	 	 	64	 
	Section 9.03. Execution of Supplemental Indentures

	 	 	65	 
	Section 9.04. Effect of Supplemental Indentures

	 	 	65	 
	Section 9.05. Conformity with Trust Indenture Act

	 	 	65	 
	Section 9.06. Reference in Securities to Supplemental Indentures

	 	 	66	 
	 
	ARTICLE 10
	 	 	 	 
	Covenants
	 	 	 	 
	 
	 	 	 	 
	Section 10.01. Payment of Principal and Interest

	 	 	66	 
	Section 10.02. Maintenance of Office or Agency

	 	 	66	 
	Section 10.03. Money for Security Payments to Be Held in Trust

	 	 	67	 
	Section 10.04. Statement by Officers as to Default

	 	 	68	 
	Section 10.05. Existence

	 	 	68	 
	Section 10.06. Additional Interest Under the Registration Rights Agreement

	 	 	68	 






iii









 









	 	 	 	 	 
	ARTICLE 11
	 	 	 	 
	Repurchase At Option Of The Holder
	 	 	 	 
	 
	 	 	 	 
	Section 11.01. Repurchase at the Option of the Holder Upon a Fundamental Change

	 	 	69	 
	 
	ARTICLE 12
	 	 	 	 
	Conversion Of Securities
	 	 	 	 
	 
	 	 	 	 
	Section 12.01. Conversion Privilege and Conversion Rate

	 	 	73	 
	Section 12.02 . Conversion in connection with a Make-Whole Fundamental
Change

	 	 	73	 
	Section 12.03. Exercise of Conversion Privilege

	 	 	75	 
	Section 12.04. Fractions of Shares

	 	 	78	 
	Section 12.05. Adjustment of Conversion Rate

	 	 	78	 
	Section 12.06. Notice of Adjustments of Conversion Rate

	 	 	85	 
	Section 12.07. Company to Reserve Common Stock

	 	 	85	 
	Section 12.08. Taxes on Conversions

	 	 	85	 
	Section 12.09. Certain Covenants

	 	 	86	 
	Section 12.10. Cancellation of Converted Securities

	 	 	86	 
	Section 12.11. Provision in Case of Effect of Reclassification,
Consolidation, Merger or Sale

	 	 	86	 
	Section 12.12. Responsibility of Trustee for Conversion Provisions

	 	 	88	 
	Section 12.13. Right to Set-off Withholding Taxes

	 	 	89	 






iv









 





     INDENTURE, dated as of June 25, 2008, between Leap Wireless International, Inc., a Delaware
corporation (the “Company”), having its principal office at 10307 Pacific Center Court, San Diego,
California 92121 and Wells Fargo Bank, N.A., a national banking association, as Trustee (herein
called the “Trustee”).



Recitals of the Company




     The Company has duly authorized the creation of an issue of its 4.50% Convertible Senior Notes
due 2014 (herein called the “Initial Securities” and together with any Additional Securities, the
“Securities”) of the tenor and amount hereinafter set forth, and to provide the terms and
conditions upon which the Securities are to be authenticated, issued and delivered, the Company has
duly authorized the execution and delivery of this Indenture.



     All things necessary to make the Securities, when executed by the Company and authenticated
and delivered as provided herein and duly issued by the Company, the valid obligations of the
Company, and to make this Indenture a valid agreement of the Company, in accordance with their and
its terms, have been done.



     NOW, THEREFORE, THIS INDENTURE WITNESSETH:



     For and in consideration of the premises and the purchase of the Securities by the Holders
thereof, it is mutually agreed, for the equal and proportionate benefit of all Holders of the
Securities, as follows:



ARTICLE 1

Definitions and Other Provisions of General Application




     Section 1.01. Definitions.



     For all purposes of this Indenture, except as otherwise expressly provided or unless the
context otherwise requires:



     (1) the terms defined in this Article have the meanings assigned to them in this Article and
include the plural as well as the singular;



     (2) all other terms used herein which are defined in the Trust Indenture Act, either directly
or by reference therein, have the meanings assigned to them therein;



     (3) all accounting terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles, and, except as otherwise herein expressly
provided, the term “generally accepted



1









 





accounting principles” in the United States with respect to any computation required or
permitted hereunder shall mean such accounting principles as are generally accepted at the date of
this Indenture; and




     (4) the words “herein”, “hereof” and “hereunder” and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or other subdivision.



     “Act”, when used with respect to any Holder, has the meaning specified in Section 1.04(a).



     “Additional Interest” means Additional Interest as defined in the Registration Rights
Agreement.



     “Additional Shares” has the meaning specified in Section 12.02(b).



     “Additional Securities” means an unlimited maximum aggregate principal amount of Securities
(other than the Initial Securities) issued under this Indenture; provided that such Additional
Securities are fungible with the Initial Securities for U.S. federal income tax purposes.



     “Affiliate” of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For the
purposes of this definition, “control” when used with respect to any specified Person means the
power to direct or cause the direction of the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or otherwise; and the
terms “controlling” and “controlled” have meanings correlative to the foregoing.



     “Agent Member” means any member of, or participant in, the Depositary.



     “Applicable Procedures” with respect to any transfer or transaction involving a Global
Security or beneficial interest therein, the rules and procedures of DTC or any successor
Depositary, in each case to the extent applicable to such transaction and as in effect from time to
time.



     “Applicable Stock Price” means the average of the Last Reported Sale Prices of Common Stock
over the five-Trading Day period starting the third Trading Day following the relevant Conversion
Date; provided that with respect to Securities surrendered for conversion on or after the
10th Scheduled Trading Day immediately preceding the Maturity Date, the Applicable Stock
Price shall mean the average of the Last Reported Sale Prices of Common Stock over the five-Trading
Day period beginning on the seventh scheduled Trading Day preceding the Maturity Date; and provided
further that with respect to Securities surrendered for conversion in connection with a Make-Whole
Fundamental Change, the Applicable Stock Price shall be determined on the basis of the Averaging
Period set forth in the last sentence of 

Section 12.02(b)(i).



2









 





     “Authenticating Agent” means any Person authorized by the Trustee pursuant to Section 6.14 to
act on behalf of the Trustee to authenticate Securities.



     “Averaging Period” means the five-Trading Day period used to determine the Applicable Stock
Price.



     “Base Conversion Price” means a dollar amount (initially approximately $93.21), derived by
dividing $1,000 by the applicable Base Conversion Rate.



     “Base Conversion Rate” means 10.7290 shares of Common Stock per $1,000 principal amount of
Securities, subject to adjustment as provided in Section 12.05.



     “Board of Directors” means either the board of directors of the Company or any duly authorized
committee of that board.



     “Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification, and delivered to the Trustee.



     “Business Day” means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day
on which banking institutions in the City of New York or the city where the Corporate Trust Office
are located are authorized or obligated by law, regulation or executive order to close.



     “Capital Stock” means, for any entity, any and all shares, interests, rights to purchase,
warrants, options, participations or other equivalents of or interests in (however designated)
stock issued by that entity.



     “Commission” or “SEC” means the United States Securities and Exchange Commission, as from time
to time constituted, or, if at any time after the execution of this Indenture such Commission is
not existing and performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.



     “Common Stock” includes any stock of any class of the Company which has no preference in
respect of dividends or of amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding-up of the Company and which is not subject to redemption by the
Company. However, subject to the provisions of Section 12.11, shares issuable on conversion of
Securities shall include only shares of the class designated as Common Stock of the Company as of
the date hereof or shares of any class or classes resulting from any reclassification or
reclassifications thereof and which have no preference in respect of dividends or of amounts
payable in the event of any voluntary or involuntary liquidation, dissolution or winding-up of the
Company and which are not subject to redemption by the Company; provided that if at any time there
shall be more than one such resulting class, the shares of each such class then so



3









 




issuable shall be substantially in the proportion which the total number of shares of such
class resulting from all such reclassifications bears to the total number of shares of all such
classes resulting from all such reclassifications.




     “Company” means the Person named as the “Company” in the first paragraph of this Indenture
until a successor Person shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Company” shall mean such successor Person.



     “Company Request” or “Company Order” means a written request or order signed in the name of
the Company by any Officer.



     “Continuing Directors” means (i) individuals who on the Issue Date of any Securities
constituted the Board of Directors and (ii) any new directors whose election to the Board of
Directors or whose nomination for election by the Company’s stockholders was approved by at least a
majority of the Company’s directors then still in office (or a duly constituted committee thereof),
either who were directors on the Issue Date of any Securities or whose election or nomination for
election was previously so approved.



     “Conversion Agent” means the person authorized by the Company to convert Securities in
accordance with Article 12.



     “Conversion Consideration” has the meaning specified in Section 12.03(h).



     “Conversion Date” has the meaning specified in Section 12.03(b).



     “Conversion Price” means at any time the amount equal to $1,000 divided by the then applicable
Conversion Rate.



     “Conversion Rate” has the meaning specified in Section 12.01(a).



     “Corporate Trust Office” means the designated office of the Trustee at which at any particular
time its corporate trust business shall be administered, which is initially located at
625 Marquette Avenue, MAC-N9311-110, Minneapolis, Minnesota 55479, Attention: Corporate Trust
Services. The Trustee shall promptly notify the Company in writing of any change in the location
of the Corporate Trust Office.



     “corporation” means a corporation, association, company, joint-stock company or business
trust.



     “Defaulted Interest” has the meaning specified in Section 3.13.



     “Depositary” means the clearing agency, registered under the Exchange Act, that is designated
to act as the Depositary for the Global Securities. The DTC shall be the initial Depositary, until
a successor shall have been appointed



4









 




and become such pursuant to the applicable provisions of this Indenture, and thereafter,
“Depositary” shall mean or include such successor.




     “DTC” means The Depository Trust Company, a New York corporation.



     “Effective Date” means the date on which a Make-Whole Fundamental Change occurs or becomes
effective.



     “Event of Default” has the meaning specified in Section 5.01.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended.



     “Exchange Election” has the meaning specified in Section 12.03(h).



     “Ex-date” means, with respect to any issuance or distribution on the Common Stock, the first
date on which the shares of the Common Stock trade on the relevant exchange or in the relevant
market, regular way, without the right to receive such issuance or distribution.



     “Extension Fee” has the meaning specified in Section 5.02.



     “Extension Right” has the meaning specified in Section 5.02.



     “Financial Institution” has the meaning specified in Section 12.03(h).



     “Fundamental Change” will be deemed to have occurred if any of the following occurs after the
Issue Date of any Securities:



     (1) any Person acquires beneficial ownership directly or indirectly, through a purchase,
merger or other acquisition transaction or series of transactions, of shares of the Company’s
Capital Stock entitling the Person to exercise 50% or more of the total voting power of all shares
of the Company’s Capital Stock entitled to vote generally in elections of directors (for purposes
of this clause (1), whether a Person is a “beneficial owner” shall be determined in accordance with
Rule 13d-3 under the Exchange Act, and “Person” shall include any syndicate or group that would be
deemed to be a “person” under Section 13(d)(3) of the Exchange Act); or



     (2) the Company (i) merges or consolidates with or into any other Person (other than a
Subsidiary), another Person merges with or into the Company, or the Company conveys, sells,
transfers or leases all or substantially all of the Company’s assets to another Person or
(ii) engages in any recapitalization, reclassification or other transaction in which all or
substantially all of the Common Stock is exchanged for or converted into cash, securities or other
property, in each case other than a merger or consolidation:



          (a) that does not result in a reclassification, conversion, exchange or cancellation of the
Common Stock and pursuant to which the




5









 







consideration received by the holders of the Common Stock immediately prior to the transaction
entitles such holders to exercise, directly or indirectly, 50% or more of the voting power of all
shares of Capital Stock entitled to vote generally in the election of directors of the continuing
or surviving corporation immediately following such transaction; or




          (b) which is effected solely to change the Company’s jurisdiction of incorporation and results
in a reclassification, conversion or exchange of outstanding shares of the Common Stock solely into
shares of common stock of the surviving entity; or




     (3) the first day on which a majority of the members of the Board of Directors does not
consist of Continuing Directors; or



     (4) the Company is liquidated or dissolved or holders of the Common Stock approve any plan or
proposal for the Company’s liquidation or dissolution; or



     (5) shares of Common Stock or shares of any other Capital Stock or American Depositary
Receipts in respect of shares of Common Stock into which the Securities are convertible pursuant to
the terms of this Indenture, are not listed for trading on any of the New York Stock Exchange, the
NASDAQ Global Market or the NASDAQ Global Select Market (or any of their respective successors),



provided, that the definition of Fundamental Change (and the definition of Make-Whole Fundamental
Change) shall not include a merger or consolidation under clause (1) or any event specified under
clause (2), in each case, if at least 90% of the consideration paid for the Common Stock (excluding
cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights
and cash dividends) in connection with such event consists of shares of common stock or American
Depositary Receipts in respect of shares of common stock traded on any of the New York Stock
Exchange, the American Stock Exchange, the NASDAQ Global Market or the NASDAQ Global Select Market
(or any of their respective successors) (or will be so traded or quoted immediately following the
completion of the merger or consolidation or such other transaction) and, as a result of such
transaction or transactions the Securities become convertible into such shares of such common stock
or such American Depositary Receipts pursuant to Section 12.11.



     “Fundamental Change Expiration Time” has the meaning specified in Section 11.01(c).



     “Fundamental Change Repurchase Date” has the meaning specified in Section 11.01(a).



     “Fundamental Change Repurchase Notice” has the meaning specified in Section 11.01(a)(i).



6









 





     “Fundamental Change Repurchase Right Notice” has the meaning specified in Section 11.01(b).



     “Fundamental Change Repurchase Price” has the meaning specified in Section 11.01(a).



     “Global Security” means a Security that is registered in the Security Register in the name of
the Depositary or a nominee thereof.



     “Holder” means a Person in whose name a Security is registered in the Security Register.



     “Incremental Share Cap” has the meaning specified in Section 12.01(c).



     “Incremental Share Factor” means 8.3150 shares of Common Stock per $1,000 principal amount of
Securities, subject to the same proportional adjustments as the Base Conversion Rate as provided in
Section 12.05.



     “Indenture” means this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof, including, for all purposes of this instrument and any such
supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of
and govern this instrument and any such supplemental indenture, respectively.



     “Initial Purchasers” means Goldman, Sachs & Co., Morgan Stanley & Co. Incorporated, Citigroup
Global Markets Inc. and Deutsche Bank Securities Inc.



     “Initial Securities” has the meaning specified in the Recitals.



     “Interest Payment Date” means the Stated Maturity of an installment of interest on the
Securities.



     “Issue Date” with respect to the Initial Securities the date hereof, and with respect to any
Additional Securities, the date of original issuance of such Additional Securities.



     “Last Reported Sale Price” means, with respect to the Common Stock or any other security for
which a Last Reported Sale Price must be determined, on any date, the closing sale price per share
of the Common Stock or unit of such other security (or, if no closing sale price is reported, the
average of the last bid and last ask prices or, if more than one in either case, the average of the
average last bid and the average last ask prices) on such date as reported in composite
transactions for the principal United States national or regional securities exchange on which it
is then traded, if any. If the Common Stock or such other security is not listed for trading on a
United States national or regional securities exchange on the relevant date, the Last Reported Sale
Price shall be the average



7









 




of the last quoted bid and ask prices per share of Common Stock or such other security in the
over-the-counter market on the relevant date, as reported by the National Quotation Bureau or
similar organization. In the absence of such quotation, the Last Reported Sale Price shall be the
average of the mid-point of the last bid and ask prices for the Common Stock or such other security
on the relevant date from each of at least three nationally recognized independent investment
banking firms, which may include any or all of the Initial Purchasers, selected from time to time
by the Company for this purpose. Any such determination shall be conclusive absent manifest error.




     “Make-Whole Fundamental Change” means any transaction or event that constitutes a Fundamental
Change pursuant to clauses (1), (2), (4) or (5) of the definition of Fundamental Change.



     “Make-Whole Reference Date” shall have the meaning in Section 12.02(b)(i).



     “Market Disruption Event” means the occurrence or existence on any Scheduled Trading Day for
the Common Stock of any suspension or limitation imposed on trading (by reason of movements in
price exceeding limits permitted by the stock exchange or otherwise) in the Common Stock or in any
options contracts or futures contracts relating to the Common Stock, and such suspension or
limitation occurs or exists at any time within the 30 minutes prior to the closing time of the
relevant exchange on such day.



     “Maturity”, when used with respect to any Security, means the date on which the principal of
such Security becomes due and payable as therein or herein provided, whether at the Stated Maturity
or by declaration of acceleration, required repurchase or otherwise.



     “Maturity Date” means, with respect to the Securities, July 15, 2014, unless earlier converted
or repurchased pursuant to the terms of this Indenture.



     “Maximum Conversion Cap” has the meaning specified in Section 12.01(b).



     “Notice of Conversion” has the meaning specified in Section 12.03(b).



     “Officer” means any of the following officers of the Company: the Chairman of the Board, a
Vice Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the
Chief Financial Officer, the Treasurer, an Assistant Treasurer, the Secretary or any Assistant
Secretary.



     “Officer’s Certificate” means a certificate signed by any Officer of the Company and delivered
to the Trustee.



     “Opinion of Counsel” means a written opinion of counsel, who may be counsel for, or an
employee of, the Company.



8









 





     “Outstanding”, when used with respect to Securities, means, as of the date of determination,
all Securities theretofore authenticated and delivered under this Indenture, except:




          (i) Securities theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation;




          (ii) Securities for whose payment or redemption money in the necessary amount has
been theretofore deposited with the Trustee or any Paying Agent (other than the Company)
in trust or set aside and segregated in trust by the Company (if the Company shall act as
its own Paying Agent) for the Holders of such Securities; and




          (iii)
Securities which have been paid pursuant to Section 3.07 or in exchange for or
in lieu of which other Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid obligations of the Company;


provided, however, that in determining whether the Holders of the requisite principal amount of the
Outstanding Securities have given any request, demand, authorization, direction, notice, consent or
waiver hereunder, Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only Securities which
the Trustee knows to be so owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction
of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of
such other obligor.




     “Paying Agent” means any Person authorized by the Company to pay the principal of or interest
on any Securities on behalf of the Company, and shall initially be the Trustee.



     “Person” means any individual, corporation, limited liability company, partnership, joint
venture, trust, unincorporated organization or government or any agency or political subdivision
thereof.



     “Place
of Conversion” has the meaning specified in Section 3.01.



     “Place
of Payment” has the meaning specified in Section 3.01.



9









 





     “Predecessor Security” of any particular Security means every previous Security evidencing all
or a portion of the same debt as that evidenced by such particular Security; and, for the purposes
of this definition, any Security authenticated and delivered under Section 3.07 in exchange for or
in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Security.



     “Reference Property” has the meaning specified in Section 12.11(b).



     “Registration Rights Agreement” means the Registration Rights Agreement, dated as of the date
hereof, between the Company and Goldman, Sachs & Co. and Morgan Stanley & Co. Incorporated, as
representatives of the Initial Purchasers, for the benefit of the Initial Purchasers and the
Holders, as the same may be amended or modified from time to time in accordance with the terms
thereof.



     “Regular Record Date” for the interest payable on any Interest Payment Date means the
January 1 or July 1 (whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date.



     “Reporting Default” has the meaning specified in Section 5.02.


     “Resale Registration Statement” means a registration statement under the Securities Act
registering the Securities for resale pursuant to the terms of the Registration Rights Agreement.



     “Responsible Officer”, when used with respect to the Trustee, means the chairman or any
vice-chairman of the board of directors, the chairman or any vice-chairman of the executive
committee of the board of directors, the chairman of the trust committee, the president, any vice
president, the secretary, any assistant secretary, the treasurer, any assistant treasurer, the
cashier, any assistant cashier, any trust officer or assistant trust officer, the controller or any
assistant controller or any other officer of the Trustee customarily performing functions similar
to those performed by any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.



     “Restricted Security” or “Restricted Securities” has the meaning specified in Section 2.09.



     “Scheduled Trading Day” means a day that is scheduled to be a Trading Day on the principal
U.S. national or regional securities exchange or market on which the Common Stock is listed or
admitted for trading or, if the Common Stock is not listed or admitted for trading on any exchange
or market, a Business Day.



     “Securities Act” means the Securities Act of 1933, as amended.




10











 






     “Security” and “Securities” have the meaning specified in the Recitals and include the Initial
Securities and any Additional Securities. The Initial Securities and Additional Securities shall
be treated as a single class for all purposes under this Indenture.



     “Security Register” and “Security Registrar” have the respective meanings specified in Section
3.06.



     “Significant Subsidiaries” means any direct or indirect Subsidiary of the Company within the
meaning of Section 1-02(w) of Regulation S-X promulgated by the Commission.



     “Special Record Date” for the payment of any Defaulted Interest means a date fixed by the
Trustee pursuant to Section 3.13(a).



     “Spin-Off” has the meaning specified in Section 12.05(c).



     “Stated Maturity”, when used with respect to any Security or any installment of interest
thereon, means the date specified in such Security as the fixed date on which the principal of such
Security or such installment of interest is due and payable.



     “Stock Price” means the price paid per share of Common Stock in connection with a Make-Whole
Fundamental Change pursuant to which Additional Shares shall be added to the Conversion Rate as set
forth in Article 12, which shall be equal to (i) if holders of Common Stock receive only cash
consideration for their shares of Common Stock in connection with the Make-Whole Fundamental
Change, the cash amount paid per share of Common Stock and (ii) in all other cases, the average of
the Last Reported Sale Prices of the Common Stock over the five consecutive Trading Day period
ending on the Trading Day preceding the date on which such Make-Whole Fundamental Change occurs or
becomes effective.



     “Subsidiary” means a corporation more than 50% of the outstanding voting stock of which is
owned, directly or indirectly, by the Company or by one or more other Subsidiaries, or by the
Company and one or more other Subsidiaries. For the purposes of this definition, “voting stock”
means stock which ordinarily has voting power for the election of directors, whether at all times
or only so long as no senior class of stock has such voting power by reason of any contingency.



     “Trading Day” means a day during which (i) trading in the Common Stock generally occurs and
(ii) there is no Market Disruption Event.



     “Trustee” means the Person named as the “Trustee” in the first paragraph of this Indenture
until a successor Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Trustee” shall mean such successor Trustee.



11









 





     “Trust Indenture Act” means the Trust Indenture Act of 1939 as in force as of the date hereof;
provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date,
“Trust Indenture Act” means, to the extent required by any such amendment, the Trust Indenture Act
of 1939 as so amended.



     “U.S. Government Obligations” means securities that are (x) direct obligations of the United
States of America for the payment of which its full faith and credit is pledged or (y) obligations
of a Person controlled or supervised by and acting as an agency or instrumentality of the United
States of America the payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case, are not callable or redeemable
at the option of the issuer thereof, and shall also include a depositary receipt issued by a bank
(as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any such U.S.
Government Obligation or a specific payment of principal of or interest on any such U.S. Government
Obligation held by such custodian for the account of the holder of such depositary receipt,
provided that (except as required by law) such custodian is not authorized to make any deduction
from the amount payable to the holder of such depositary receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment of principal of or
interest on the U.S. Government Obligation evidenced by such depositary receipt.



     “Vice President,” when used with respect to the Company or the Trustee, means any vice
president, whether or not designated by a number or a word or words added before or after the title
“vice president.”



     This Indenture is subject to the mandatory provisions of the Trust Indenture Act, which are
incorporated by reference in and made a part of this Indenture. The following Trust Indenture Act
terms have the following meanings:



     “Indenture Securities” means the Securities.



     “Indenture Security Holder” means a Holder.



     “Indenture to be Qualified” means this Indenture.



     “Indenture Trustee” or “Institutional Trustee” means the Trustee.



     All other terms in this Indenture that are defined by the Trust Indenture Act, defined by it
by reference to another statute or defined by SEC rule have the meanings assigned to them by such
definitions. If any provision hereof limits, qualifies or conflicts with another provision hereof
which is required to be included in this Indenture by the Trust Indenture Act, such required
provision shall control.



12









 





     Section 1.02. Compliance Certificates and Opinions.



     Upon any application or request by the Company to the Trustee to take any action under any
provision of this Indenture, the Company shall furnish to the Trustee such certificates and
opinions as may be required under the Trust Indenture Act. Each such certificate or opinion shall
be given in the form of an Officer’s Certificate, if to be given by an officer of the Company, or
an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the
Trust Indenture Act and any other requirement set forth in this Indenture. Each Officer’s
Certificate in form and substance satisfactory to the Trustee (which shall include the statements
set forth in this Section 1.02 below) shall state that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in the Indenture relating to the proposed
action have been satisfied. Each Opinion of Counsel in form and substance satisfactory to the
Trustee (which shall include the statements set forth in this Section 1.02 below) shall state that,
in the opinion of such counsel, all conditions precedent and covenants, if any, have been
satisfied.



     Every certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture shall include:



     (1) a statement that each individual signing such certificate or opinion has read such
covenant or condition and the definitions herein relating thereto;



     (2) a brief statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are based;



     (3) a statement that, in the opinion of each such individual, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with; and



     (4) a statement as to whether, in the opinion of each such individual, such condition or
covenant has been complied with.



     Section 1.03. Form of Documents Delivered to Trustee.



     In any case where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to some matters and one or more
other such Persons as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.



     Any certificate or opinion of an officer of the Company may be based, insofar as it relates to
legal matters, upon a certificate or opinion of, or



13









 







representations by, counsel, unless such officer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to the matters upon
which his certificate or opinion is based are erroneous. Any such certificate or opinion of
counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of,
or representations by, an officer or officers of the Company stating that the information with
respect to such factual matters is in the possession of the Company, unless such counsel knows, or
in the exercise of reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous. Any such certificate or opinion of counsel may be
based, insofar as it relates to accounting matters, upon a certificate or opinion of, or
representations by, an accountant (who may be an employee of the Company) or firm of accountants,
unless such counsel knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.



     Where any Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this Indenture, they may,
but need not, be consolidated and form one instrument.



     Section 1.04. Acts of Holders; Record Dates.



     (a) Any request, demand, authorization, direction, notice, consent, waiver or other action
provided or permitted by this Indenture to be given, made or taken by Holders may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed by such Holders in
person or by agent duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are delivered to the Trustee
and, where it is hereby expressly required, to the Company. The Trustee shall promptly deliver to
the Company copies of all such instruments or instruments and records delivered to the Trustee.
Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the “Act” of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Indenture and (subject to Section 6.01) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.



     (b) The fact and date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by a certificate of a notary public or
other officer authorized by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof. Where such execution
is by a signer acting in a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the



14









 







authority of the Person executing the same, may also be proved in any other manner which the
Trustee deems sufficient.



     (c) The Company may, in the circumstances permitted by the Trust Indenture Act, fix any day as
the record date for the purpose of determining the Holders entitled to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action, or to vote on any
action, authorized or permitted to be given or taken by Holders. If not set by the Company prior
to the first solicitation of a Holder made by any Person in respect of any such action, or, in the
case of any such vote, prior to such vote, the record date for any such action or vote shall be the
30th day (or, if later, the date of the most recent list of Holders required to be provided
pursuant to Section 7.01) prior to such first solicitation or vote, as the case may be. With
regard to any record date, only the Holders on such date (or their duly designated proxies) shall
be entitled to give or take, or vote on, the relevant action.



     (d) The ownership of Securities shall be proved by the Security Register.



     (e) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the
Holder of any Security shall bind every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company
in reliance thereon, whether or not notation of such action is made upon such Security.



     Section 1.05. Notices, Etc., to Trustee and Company.



     Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or furnished to, or
filed with,



     (1) the Trustee by any Holder or by the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing (or by facsimile transmission to (612)
667-9825 (or such other telephone number specified by the Trustee), provided that oral confirmation
of receipt shall have been received) to or with the Trustee at its Corporate Trust Office, or such
other means reasonably acceptable to the Trustee, or



     (2) the Company by the Trustee or by any Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to the Company addressed to it at the address of its principal office specified in
the first paragraph of this Indenture or at any other address previously furnished in writing to
the Trustee by the Company, Attention: Chief Financial Officer, with a copy to the Secretary or
such other means reasonably acceptable to the Company.



15









 





     Section 1.06. Notice to Holders; Waiver.



     Where this Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at his address as it appears in
the Security Register, or by such other means reasonably acceptable to the Holder (including, so
long as the Securities are Global Securities, through the Applicable Procedures), in each case not
later than the latest date (if any), and not earlier than the earliest date (if any), prescribed
for the giving of such notice. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides
for notice in any manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such waiver.



     In case by reason of the suspension of regular mail service or by reason of any other cause it
shall be impracticable to give such notice by mail, then such notification as shall be made with
the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.



     Section 1.07. Conflict With Trust Indenture Act.



     If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture
Act that is required under such Act to be a part of and govern this Indenture, the latter provision
shall control. If any provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply to
this Indenture as so modified or to be excluded, as the case may be.



     Section 1.08. Effect of Headings and Table of Contents.



     The Article and Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.



     Section 1.09. Successors and Assigns.



     All covenants and agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.



     Section 1.10. Separability Clause.



     In case any provision in this Indenture or in the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.



16









 





     Section 1.11. Benefits of Indenture.



     Nothing in this Indenture or in the Securities, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder and the Holders of Securities, any
benefit or any legal or equitable right, remedy or claim under this Indenture.



     Section 1.12. Governing Law.



     This Indenture and the Securities shall be governed by and construed in accordance with the
laws of the State of New York.



     Section 1.13. Legal Holidays.



     In any case where any Interest Payment Date, Fundamental Change Repurchase Date, Stated
Maturity or the last date on which a Holder has the right to convert his Securities, shall not be a
Business Day, then (notwithstanding any other provision of this Indenture or of the Securities)
payment of interest or principal or conversion of the Securities need not be made on such date, but
may be made on the next succeeding Business Day with the same force and effect as if made on the
Interest Payment Date, Fundamental Change Repurchase Date, the Stated Maturity, or on such last day
for conversion, provided that no interest shall accrue for the period from and after such Interest
Payment Date, Fundamental Change Repurchase Date or Stated Maturity, as the case may be.



     Section 1.14. Indenture May Be Executed in Counterparts.



     This Indenture may be executed in any number of counterparts, each of which shall be an
original, but such counterparts shall together constitute one and the same instrument.



     Section 1.15. Acceptance of Trust.



     Wells Fargo Bank, N.A., the Trustee named herein, hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions set forth herein.



     Section 1.16. No Personal Liability of Directors, Officers, Employees and Stockholders



     No director, officer, employee, incorporator, stockholder, member, manager or partner of the
Company, as such, shall have any liability for any obligations of the Company under the Securities
or this Indenture or for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder of Securities by accepting a Security waives and releases all such
liability. This waiver and release are part of the consideration for issuance of the Securities.
The waiver and release may not be effective to waive liabilities under the federal securities laws.



17









 





ARTICLE 2

Security Forms




     Section 2.01. Forms Generally.



     The Securities and the Trustee’s certificates of authentication shall be in substantially the
forms set forth in this Article, with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such legends or endorsements placed thereon as may be required
to comply with the rules of any securities exchange or any depositary therefore or as may,
consistently herewith, be determined by the officers executing such Securities, as evidenced by
their execution of the Securities.



     Notices of Conversion shall be in substantially the form set forth in Section 2.05.



     The definitive Securities shall be printed, lithographed or engraved or produced by any
combination of these methods on steel engraved borders or may be produced in any other manner
permitted by the rules of any securities exchange on which the Securities may be listed, all as
determined by the officers executing such Securities, as evidenced by their execution of such
Securities.



     Section 2.02. Form of Face of Security.


[INCLUDE IF SECURITY IS A RESTRICTED SECURITY — THE SALE OF THIS SECURITY HAS NOT BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND ACCORDINGLY,
THIS SECURITY MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER AGREES (1) THAT IT WILL NOT WITHIN THE LATER OF (X) ONE YEAR AFTER
THE LAST DATE OF ORIGINAL ISSUANCE OF THE SECURITIES (INCLUDING THROUGH THE EXERCISE BY THE INITIAL
PURCHASERS OF THEIR OPTION TO PURCHASE ADDITIONAL SECURITIES OR COVER ALLOTMENTS) AND (Y) 90 DAYS
AFTER IT CEASES TO BE AN AFFILIATE (WITHIN THE MEANING OF RULE 144 UNDER THE SECURITIES ACT) OF THE
ISSUER, OFFER, RESELL, PLEDGE OR OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY OR THE COMMON
STOCK ISSUABLE UPON CONVERSION OF SUCH SECURITY, EXCEPT (A) TO THE ISSUER; (B) UNDER A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT; (C) TO A PERSON THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER QUALIFIED
INSTITUTIONAL BUYER AND TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING


18









 






MADE IN RELIANCE ON RULE 144A, ALL IN COMPLIANCE WITH RULE 144A (IF AVAILABLE); OR (D) UNDER ANY OTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT; AND (2) THAT IT WILL,
PRIOR TO ANY TRANSFER OF THIS SECURITY PURSUANT TO CLAUSE (D) WITHIN THE LATER OF (X) SIX MONTHS
(OR, IF THE ISSUER HAS NOT SATISFIED THE CURRENT PUBLIC INFORMATION REQUIREMENTS OF RULE 144, ONE
YEAR) AFTER THE LAST DATE OF ORIGINAL ISSUANCE OF THE SECURITIES (INCLUDING THROUGH THE EXERCISE BY
THE INITIAL PURCHASERS OF THEIR OPTION TO PURCHASE ADDITIONAL SECURITIES TO COVER OVERALLOTMENTS)
AND (Y) 90 DAYS AFTER IT CEASES TO BE AN AFFILIATE (WITHIN THE MEANING OF RULE 144 UNDER THE
SECURITIES ACT) OF THE ISSUER, FURNISH TO THE TRUSTEE AND THE ISSUER SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS THEY MAY REQUIRE PURSUANT TO THE INDENTURE AND MAY RELY UPON TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO SUCH OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. IN ANY EVENT, NO AFFILIATE OF THE ISSUER MAY
PURCHASE OR SELL THIS SECURITY PRIOR TO THE DATE THAT IS ONE YEAR AFTER THE LAST DATE OF ORIGINAL
ISSUANCE OF THE SECURITIES (INCLUDING THROUGH THE EXERCISE BY THE INITIAL PURCHASERS OF THEIR
OPTION TO PURCHASE ADDITIONAL SECURITIES TO COVER OVERALLOTMENTS). THE RESTRICTIONS SET FORTH IN
THIS LEGEND SHALL CEASE TO HAVE EFFECT ONE YEAR AFTER THE LAST DATE OF ORIGINAL ISSUANCE OF
SECURITIES (INCLUDING THROUGH THE EXERCISE BY THE INITIAL PURCHASERS OF THEIR OPTION TO PURCHASE
ADDITIONAL SECURITIES TO COVER OVERALLOTMENTS) PROVIDED THAT ALL HOLDERS AFTER SUCH DATE SHALL
CONTINUE TO BE REQUIRED TO TRANSFER SECURITIES IN CONFORMITY WITH THE REQUIREMENTS OF APPLICABLE
SECURITIES LAWS.]




Leap Wireless International, Inc.




4.50% Convertible Senior Notes due 2014




			
	No.
         
	 	$






CUSIP No.




     Leap Wireless International, Inc., a corporation duly organized and existing under the laws of
the State of Delaware (herein called the “Company”, which term includes any successor Person under
the Indenture hereinafter referred to), for value received, hereby promises to pay to
        , or registered assigns, the principal sum [of            Dollars] [IF THIS SECURITY IS A GLOBAL



19









 







SECURITY, THEN INSERT — set forth on the Principal Schedule attached to this Security] on
July 15, 2014, and to pay interest thereon from June 25, 2008 or from the most recent Interest
Payment Date to which interest has been paid or duly provided for to but excluding the next
Interest Payment Date, semi-annually on January 15 and July 15 in each year, commencing January 15,
2009, at the rate of 4.50% per annum, until the principal hereof is paid or made available for
payment. The interest so payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one
or more Predecessor Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the January 1 or July 1 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or
duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and
may either be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of
Securities not less than 10 days prior to such Special Record Date, or be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities exchange on which the
Securities may be listed, and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture. Payment of the principal of and interest on this Security will be
made at the office or agency of the Company maintained for that purpose, which shall initially be
the corporate trust operations office of Wells Fargo Bank, N.A. in Minneapolis, Minnesota, in such
coin or currency of the United States of America as at the time of payment is legal tender for
payment of public and private debts; provided, however, that at the option of the Company payment
of interest may be made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register.



     Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.



     Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.



20









 







     IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed



     Dated:



	 	 	 	 	 	 	 
	 	 	LEAP WIRELESS INTERNATIONAL, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 






     Section 2.03. Form of Reverse of Security.



     This Security is one of a duly authorized issue of Securities of the Company designated as its
4.50% Convertible Senior Notes due 2014 (herein called the “Initial Securities”), initially limited
in aggregate principal amount to $250,000,000, issued and to be issued under an Indenture, dated as
of June 25, 2008 (herein called the “Indenture”), between the Company and Wells Fargo Bank, N.A.,
as Trustee (herein called the “Trustee”, which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for
a statement of the respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. The Company may from time to time,
without notice to or the consent of the Holders of the Securities, create and issue further
Securities (the “Additional Securities”, and together with the Initial Securities, the
“Securities”) having the same terms and ranking equally and ratably with the Initial Securities, as
part of one series, in all respects and with the same CUSIP number (after any period required to
remove restrictions on transfer as a result of U.S. securities laws from such Additional
Securities) as the Initial Securities, or in all respects except for payment of interest accruing
prior to the Issue Date of such Initial Securities. Any Additional Securities shall be consolidated
and form a single series with the Initial Securities and shall have the same terms as to status,
redemption, and otherwise as the Initial Securities. Any Additional Securities may be issued
pursuant to authorization provided by a resolution of the Board of Directors of the Company, a
supplement to the Indenture, or under an Officer’s Certificate pursuant to the Indenture. No
Additional Securities may be issued if an Event of Default has occurred and is continuing with
respect to the Initial Securities.



     In any case where the due date for the payment of the principal of or interest on any Security
or the last day on which a Holder of a Security has a right to convert his Security shall be, at
any Place of Payment or Place of Conversion, as the case may be, a day on which banking
institutions at such Place of Payment or Place of Conversion are authorized or obligated by law or
executive order to close, then payment of principal, interest or delivery for conversion of such



21









 







Security need not be made on or by such date at such place but may be made on or by the next
succeeding day at such place which is not a day on which banking institutions are authorized or
obligated by law, regulation or executive order to close, with the same force and effect as if made
on the date for such payment or the date fixed for redemption or repurchase, or by such last day
for conversion, and no interest shall accrue on the amount so payable for the period after such
date.



     Subject to the provisions of the Indenture, upon the occurrence of a Fundamental Change, the
Holder has the right, at such Holder’s option, to require the Company to repurchase all of such
Holder’s Securities or any portion thereof (in principal amounts of $1,000 or integral multiples
thereof) on the Fundamental Change Repurchase Date at a price equal to 100% of the principal amount
of the Securities such Holder elects to require the Company to repurchase, together with accrued
and unpaid interest to but excluding the Fundamental Change Repurchase Date. The Company or, at the
written request of the Company, the Trustee shall mail to all Holders of record of the Securities a
notice of the occurrence of a Fundamental Change and of the repurchase right arising as a result
thereof after the occurrence of any Fundamental Change, but on or before the 10th calendar day
following such occurrence.



     Subject to and upon compliance with the provisions of the Indenture, the Holder of this
Security is entitled, at his option, at any time prior to the close of business on the third
Scheduled Trading Day immediately preceding the Maturity Date, to convert this Security (or any
portion of the principal amount hereof which is $1,000 or an integral multiple thereof), at the
principal amount hereof, or of such portion, into fully paid and non-assessable shares (calculated
as to each conversion to the nearest 1/100 of a share) of Common Stock of the Company at the
Conversion Rate specified in the Indenture, by surrender of this Security together with a Notice of
Conversion, a form of which is set forth in Section 2.05 of the Indenture, as provided in the
Indenture and this Security, duly endorsed or assigned to the Company or in blank, to the Company
at its office or agency, which shall be initially the corporate trust operations office of Wells
Fargo Bank, N.A. in Minneapolis, Minnesota, and, unless the shares of Common Stock issuable on
conversion are to be issued in the same name as this Security, duly endorsed by, or accompanied by
instruments of transfer in form satisfactory to the Company or its agent duly executed by, the
Holder or by his duly authorized attorney, or if less than the entire principal amount hereof is to
be converted, the portion hereof to be converted, and, in case such surrender shall be made during
the period from the close of business on any Regular Record Date next preceding any Interest
Payment Date to the opening of business on such Interest Payment Date, also accompanied by payment
in dollars of an amount equal to the interest payable on such Interest Payment Date on the
principal amount of this Security then being converted. Subject to the aforesaid requirement for
payment and, in the case of a conversion after the Regular Record Date next preceding any Interest
Payment Date and on or before such Interest Payment Date, to the right of the Holder of this
Security (or any Predecessor Security) of record at such Regular



22









 







Record Date to receive an installment of interest (with certain exceptions provided in the
Indenture), no payment or adjustment is to be made on conversion for interest accrued hereon or for
dividends on the Common Stock issued on conversion. No fractions of shares or scrip representing
fractions of shares will be issued on conversion, but instead of any fractional interest the
Company shall pay a cash adjustment as provided in the Indenture. The Conversion Rate is subject to
adjustment as provided in the Indenture. In addition, the Indenture provides that in case of
certain consolidations or mergers to which the Company is a party or the transfer of substantially
all of the assets of the Company, the Indenture shall be amended, without the consent of any
Holders of Securities, so that this Security, if then outstanding, will be convertible thereafter,
during the period this Security shall be convertible as specified above, by reference to the kind
and amount of cash, securities or other property or assets that a holder of a number of shares of
Common Stock would be entitled to receive in respect of each share of Common Stock upon such
transaction based on a Conversion Rate calculated as provided in Section 12.01 of the Indenture
with references to Common Stock replaced by references to the Reference Property (as defined in
Section 12.11(b) of the Indenture) received in such transaction.



     No sinking fund is provided for the Securities and the Securities are not subject to
redemption at the option of the Company.



     In the event of conversion of this Security in part only, a new Security or Securities for the
unconverted portion hereof will be issued in the name of the Holder hereof upon the cancellation
hereof.



     If an Event of Default shall occur and be continuing, the principal of all the Securities may
be declared due and payable in the manner and with the effect provided in the Indenture.



     The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of the Holders of the
Securities under the Indenture at any time by the Company and the Trustee with the consent of the
Holders of at least a majority in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of specified percentages
in aggregate principal amount of the Securities at the time Outstanding, on behalf of the Holders
of all the Securities, to waive compliance by the Company with certain provisions of the Indenture
and certain past defaults under the Indenture and their consequences. Any such consent or waiver by
the Holder of this Security shall be conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon
this Security.



     No reference herein to the Indenture and no provision of this Security or of the Indenture
shall alter or impair the obligation of the Company, which is



23









 







absolute and unconditional, to pay the principal of and interest on this Security at the
times, place and rate, and in the coin or currency, herein prescribed or to convert this Security
as provided in the Indenture.



     As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registrable in the Security Register, upon surrender of this Security
for registration of transfer at the office or agency of the Company in any place where the
principal of and any premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Securities, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.



     The Securities are issuable only in registered form without coupons in denominations of $1,000
and any integral multiple thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Securities are exchangeable for a like aggregate principal amount of Securities
of a different authorized denomination, provided that such denomination is a minimum of $1,000 or
an integral multiple thereof, as requested by the Holder surrendering the same.



     No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.



     Prior to due presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.



     THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK.



     All terms used in this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.




24












 






[INCLUDE IN GLOBAL SECURITIES ONLY]




PRINCIPAL SCHEDULE




LEAP WIRELESS INTERNATIONAL, INC.




4.50% Convertible Senior Notes due 2014




No.         




     The initial principal amount of this Global Security is $250,000,000. The following decreases
or increases in this Global Security have been made:



	 	 	 	 	 	 	 
	 

	 	Amount of
	 	Amount of
	 	Principal amount
	 

	 	decrease in
	 	increase in
	 	of this Global
	 

	 	principal amount
	 	principal amount
	 	Security following
	Date of decrease

	 	of this Global
	 	of this Global
	 	such increase or
	or increase

	 	Security
	 	Security
	 	decrease
	 

	 	 
	 	 
	 	 





     Section 2.04 . Form of Legend for Global Securities.



     Unless otherwise specified as contemplated by Section 3.01 for the Securities evidenced
thereby, every Global Security authenticated and delivered hereunder shall bear a legend in
substantially the following form:



     THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE
EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE
OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.



     Section 2.05 . Form of Notice of Conversion.



Conversion notices shall be in substantially the following form:




NOTICE OF CONVERSION




     The undersigned Holder of this Security hereby irrevocably exercises the option to convert
this Security, or any portion of the principal amount hereof (which is U.S. $1,000 or an integral
multiple of U.S. $1,000 in excess thereof, provided that the unconverted portion of such principal
amount is U.S. $1,000 or any integral multiple of U.S. $1,000 in excess thereof) below designated,
into shares of Common Stock or Reference Property, as applicable in accordance with



25









 









the terms of the Indenture referred to in this Security, and directs that such shares, if any,
together with a check in payment for any fractional share and any Securities representing any
unconverted principal amount hereof, be delivered to and be registered in the name of the
undersigned unless a different name has been indicated below. If shares of Common Stock, Reference
Property or Securities are to be registered in the name of a Person other than the undersigned, the
undersigned shall pay all transfer taxes payable with respect thereto.



     Dated:
                     Signature(s):                                         



     If shares or Securities are to be registered in the name of a Person other than the Holder,
please print such Person’s name and address:


(Name)



(Address)



Social Security or other



Identification Number, if any



If only a portion of the Securities are to be converted, please indicate:



1.
Principal amount to be converted: U.S. $           
          



2. Principal amount and denomination of Securities representing unconverted principal amount to be
issued:



Amount:
U.S. $            
         
Denominations: U.S. $           
          




     (U.S. $1,000 or any integral multiple of U.S. $1,000 in excess thereof, provided that the
unconverted portion of such principal amount is U.S. $1,000 or any integral multiple of U.S. $1,000
in excess thereof)



     Section 2.06 . Form of Assignment.



ASSIGNMENT




     For value received,                      hereby sell(s), assign(s) and
transfer(s) unto                      (Please insert Social Security or other
identifying number of assignee) the within Security, and hereby irrevocably constitutes and
appoints                      as attorney to transfer the said Security on
the books of the Company, with full power of substitution in the premises.



     Dated:
                     Signature(s):                                         



26









 





     Signature(s) must be guaranteed by an Eligible Guarantor Institution with membership in an
approved signature guarantee program pursuant to Rule 17Ad-15 under the Securities Exchange Act of
1934.



     Signature Guaranteed



     In connection with any transfer of this Security occurring prior to the date which is the
earlier of (i) the date of the declaration by the Commission of the effectiveness of a registration
statement under the Securities Act, as amended (the “Securities Act”), covering resales of this
Security (which effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii) the first anniversary of the last Issue Date, the undersigned confirms that it
has not utilized any general solicitation or general advertising in connection with the transfer
and that this Security is being transferred:



     [Check One]



     (1)     o      to the Company or a subsidiary thereof; or



     (2)     o      to a “Qualified Institutional Buyer” pursuant to and in compliance with
Rule 144A under the Securities Act; or



     (3)     o     pursuant to the exemption from registration provided by Rule 144 under
the Securities Act.


Unless one of the above boxes is checked, the Trustee will refuse to register any of the Securities
evidenced by this certificate in the name of any Person other than the registered Holder thereof,
provided that if box (3) is checked, the Company may require (and shall deliver to the Trustee and
the Security Registrar), prior to registering any such transfer of the Securities, in its sole
discretion, such legal opinions, certifications and other information as the Company may reasonably
request to confirm that such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities Act.



If none of the foregoing boxes is checked, the Trustee or Security Registrar shall not be obligated
to register this Security in the name of any Person other than the Holder hereof unless and until
the conditions to any such transfer of registration set forth herein and in Section 3.10 of the
Indenture shall have been satisfied.



In connection with any transfer prior to the first anniversary of the last Issue Date (other than
transfers pursuant to an effective registration statement), the undersigned represents and warrants
that to its knowledge the transferee is not an affiliate (within the meaning of Rule 144 under the
Securities Act) of the Company.




27









 





     Dated:                      Signature(s):                                         



     Signature(s) must be guaranteed by an Eligible Guarantor Institution with membership in an
approved signature guarantee program pursuant to Rule 17Ad-15 under the Securities Exchange Act of
1934.



     Signature Guaranteed



TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED




     The undersigned represents and warrants that it is purchasing this Security for its own
account or an account with respect to which it exercises sole investment discretion and that it and
any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the
Securities Act and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the undersigned has
requested pursuant to Rule 144A or has determined not to request such information and that it is
aware that the transferor is relying upon the undersigned’s foregoing representations in order to
claim the exemption from registration provided by Rule 144A.



     TO BE COMPLETED BY ALL PURCHASERS



     In connection with any purchase (except if pursuant to an effective registration statement) of
this Security occurring prior the first anniversary of the last Issue Date, the undersigned
represents and warrants that it is not an affiliate (within the meaning for Rule 144 under the
Securities Act) of the Company.



     Dated:                      Signature(s):                                         



     NOTICE: To be executed by an executive officer.



     Section 2.07 . Form of Trustee’s Certificate of Authentication.



     This is one of the Securities referred to in the within-mentioned Indenture.



	 	 	 	 	 	 	 
	 	 	WELLS FARGO BANK, N.A., as Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Authorized Officer
	 	 






     Section 2.08 . Form of Fundamental Change Repurchase Notice.


To: Leap Wireless International, Inc.



RE: $250,000,000 4.50% Convertible Senior Notes due 2014




28









 





     The undersigned registered owner of this Security hereby acknowledges receipt of a notice from
Leap Wireless International, Inc. (the “Company”) as to the occurrence of a Fundamental Change with
respect to the Company and hereby directs the Company to pay, or cause the Trustee to pay,           
          
 an amount in cash equal to 100% of the entire principal amount, or
the portion thereof (which is $1,000 principal amount or an integral multiple thereof) below
designated, to be repurchased plus interest accrued to, but excluding, the Fundamental Change
Repurchase Date, except as provided in the Indenture.




     Dated:                     



     Signature:                     



     Principal amount to be repurchased (at least $1,000 or an integral multiple of $1,000 in
excess thereof):                     



     Remaining
principal amount following such repurchase:                     



     By:
                                        



     Authorized signatory



     Section 2.09 . Legend on Restricted Securities.



     During the period beginning on the Issue Date and ending on the date one year after the last
date of original issuance of Securities (including through the exercise of the Initial Purchasers’
option to purchase Additional Securities), any Security, including any Security issued in exchange
therefor or in lieu thereof, shall be deemed a “Restricted Security” and shall be subject to the
restrictions on transfer provided in the legends set forth on the face of the form of Security in
Section 2.02; provided, however, that the term “Restricted Security” shall not include any
Securities as to which restrictions have been terminated in accordance with Section 3.10. All
Securities shall bear the applicable legends set forth on the face of the form of Security in
Section 2.02. Except as provided in Section 3.06 and Section 3.10, the Trustee shall not issue
any unlegended Security until it has received an Officer’s Certificate from the Company directing
it to do so.



ARTICLE 3

The Securities




     Section 3.01 . Title and Terms; Principal and Interest.



     The aggregate principal amount of Initial Securities which may be authenticated and delivered
under this Indenture is limited to $250,000,000 and the aggregate amount of Additional Securities
is unlimited, except for Securities authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Securities pursuant to Section 3.03, Section 3.04, Section
3.05,



29









 







Section 3.06, Section 3.07, Section 9.06 or Section 12.03, and provided that such Additional
Securities are fungible with the Initial Securities for U.S. federal income tax purposes.



     The Initial Securities and the Additional Securities, if any, shall be known and designated as
the “4.50% Convertible Senior Notes due 2014” of the Company.



     The Securities shall mature on July 15, 2014,



     The Securities shall bear interest at the rate of 4.50% per annum, from June 25, 2008 or from
the most recent Interest Payment Date to which interest has been paid or duly provided for, as the
case may be, payable semi-annually in arrears on January 15 and July 15, commencing January 15,
2009, until the principal thereof is paid or made available for payment.



     If any Interest Payment Date falls on a day that is not a Business Day, the interest payment
due on such Interest Payment Date shall be paid on the next succeeding Business Day and no interest
on such payment will accrue for the period from the Interest Payment Date to such next succeeding
Business Day. If the Stated Maturity date falls on a day that is not a Business Day, the required
payment of interest, if any, and principal (and Additional Interest, if any), shall be postponed to
the next succeeding Business Day and no interest on such payment will accrue for the period from
and after the Stated Maturity date to such next succeeding Business Day. If a Fundamental Change
Repurchase Date would fall on a day that is not a Business Day, the Company will purchase the
Securities tendered for purchase on the next succeeding Business Day and no interest or Additional
Interest on such Securities will accrue for the period from and after the earlier Fundamental
Change Repurchase Date to such next succeeding Business Day. The Company will pay the Fundamental
Change Repurchase Price promptly following the later of (i) such next succeeding Business Day or
(ii) the time of book entry transfer or the delivery of the Securities as set forth in Section
11.01 hereof.



     A Holder of any Security at 5:00 p.m., New York City time, on a Regular Record Date shall be
entitled to receive interest (including any Additional Interest), on such Security on the
corresponding Interest Payment Date. Holders of Securities at 5:00 p.m., New York City time, on a
Regular Record Date will receive payment of interest (including any Additional Interest) payable on
the corresponding Interest Payment Date notwithstanding the conversion of such Securities at any
time after 5:00 p.m., New York City time on such Regular Record Date. Securities surrendered for
conversion during the period after 5:00 p.m., New York City time, on any Regular Record Date to
9:00 a.m., New York City time, on the corresponding Interest Payment Date must be accompanied by
payment of an amount equal to the interest (including any Additional Interest) that the Holder is
to receive on the Securities. Notwithstanding the foregoing, no such payment of interest (including
any Additional Interest) need be made by any



30









 







converting Holder (i) if the Company has specified a Fundamental Change Repurchase Date that
is after a Regular Record Date and on or prior to the corresponding Interest Payment Date, or (ii)
to the extent of any overdue interest (including any overdue Additional Interest) remains unpaid at
the time of conversion of such Security; or (iii) in respect of any conversions that occur after
the Regular Record Date immediately preceding the Maturity Date. Except where Securities
surrendered for conversion must be accompanied by payment as described above, no interest or
Additional Interest on converted Securities will be payable by the Company on any interest payment
date subsequent to the Conversion Date and delivery of the cash and shares of Common Stock, if
applicable, pursuant to Article 12 hereunder, together with any cash payment for any fractional
share, upon conversion will be deemed to satisfy the Company’s obligation to pay the principal
amount of the Securities and accrued and unpaid interest and Additional Interest, if any, to, but
not including, the related Conversion Date.



     Principal of and interest on, Global Securities shall be payable to DTC in immediately
available funds.



     Principal on definitive Securities shall be payable at the office or agency of the Company
maintained for such purpose, initially the agency of the Trustee at Minneapolis, Minnesota (such
office and city in which the Paying Agent is located being herein after called the “Place of
Payment”). Interest, on definitive Securities will be payable (i) to each Holder of Securities
having an aggregate principal amount of $5,000,000 or less, by check mailed to such Holder and (ii)
to each Holder of Securities having an aggregate principal amount of more than $5,000,000, either
by check mailed to such Holder or, upon application by such Holder to the Registrar not later than
the relevant Regular Record Date, by wire transfer in immediately available funds to that Holder’s
account within the United States, which application shall remain in effect until the Holder
notifies, in writing, the Registrar to the contrary.



     The Securities shall be convertible as provided in Article 12 (any city in which the
Conversion Agent is located being herein after called the “Place of Conversion”).



     Section 3.02 . Denominations.



     The Securities shall be issuable only in registered form without coupons and only in
denominations of $1,000 and any integral multiple thereof.



     Section 3.03 . Global Securities; Non-global Securities; Book-entry Provisions.



     The Securities may be issued in Global or Non-Global (Definitive) Form as provided in this
Indenture.



31









 







(a) Global Securities





     (i) Each Global Security authenticated under this Indenture shall be registered in
the name of, and delivered to, Cede & Co., as nominee of the Depositary. Each such Global
Security shall constitute a single Security for all purposes of this Indenture.




     (ii) Except for exchanges of Global Securities for definitive, non-Global Securities
at the sole discretion of the Company, no Global Securities may be exchanged in whole or
in part for Securities registered, and no transfer of a Securities in whole or in part may
be registered, in the name of any Person other than the Depositary for such Global
Security or a nominee thereof unless (A) such Depositary (1) has notified the Company that
it is unwilling or unable to continue as Depositary for such Global Security or (2) has
ceased to be a clearing agency registered as such under the Exchange Act or announces an
intention permanently to cease business or does in fact do so or (B) there shall have
occurred and be continuing an Event of Default with respect to such Global Security. In
such event, if a successor Depositary for such Global Security is not appointed by the
Company within 90 calendar days after the Company receives such notice or becomes aware of
such ineligibility, the Company shall execute, and the Trustee, upon receipt of an
Officer’s Certificate directing the authentication and delivery of non-Global Securities,
shall authenticate and deliver, non-Global Securities, in any authorized denominations in
an aggregate principal amount equal to the principal amount of such Global Security in
exchange for such Global Security.




     (iii) If any Global Security is to be exchanged for other Securities or canceled in
whole, it shall be surrendered by or on behalf of the Depositary or its nominee to the
Trustee, as Registrar, for exchange or cancellation, as provided in this Article. If any
Global Security is to be exchanged for other Securities or canceled in part, or if another
Security is to be exchanged in whole or in part for a beneficial interest in any Global
Security, in each case, as provided in Article 2 of this Indenture, then either (A) such
Global Security shall be so surrendered for exchange or cancellation, as provided in this
Article, or (B) the principal amount thereof shall be reduced or increased by an amount
equal to the portion thereof to be so exchanged or canceled, or equal to the principal
amount of such other Security to be so exchanged for a beneficial interest therein, as the
case may be, by means of an appropriate adjustment made on the records of the Trustee, as
Registrar, whereupon the Trustee, in accordance with the Applicable Procedures, shall
instruct the Depositary or its authorized representative to make a corresponding
adjustment to its records. Upon any such surrender or adjustment of a Global Security, the
Trustee shall, subject to this Article, authenticate and deliver any Securities issuable
in exchange for such Global Security (or any portion thereof) to or upon the order of, and
registered in such names as may be



32









 







directed by, the Depositary or its authorized representative. The Trustee shall be
entitled to receive from the Depositary the names, addresses and tax identification
numbers of the Persons in whose name the Securities are to be registered prior to such
authentication and delivery. Upon the request of the Trustee in connection with the
occurrence of any of the events specified in the preceding paragraph, the Company shall
promptly make available to the Trustee a reasonable supply of Securities that are not in
the form of Global Securities. The Trustee shall be entitled to rely upon any order,
direction or request of the Depositary or its authorized representative which is given or
made pursuant to this Article If such order, direction or request is given or made in
accordance with the Applicable Procedures (to the extent such procedures are applicable to
such direction or request).




     (iv) Every Security authenticated and delivered upon registration of transfer of, or
in exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant
to this Article or otherwise, shall be authenticated and delivered in the form of, and
shall be, a registered Global Security, unless such Security is registered in the name of
a Person other than the Depositary for such Global Security or a nominee thereof, in which
case such Security shall be authenticated and delivered in accordance with clause (b) of
this Section 3.03.




     (v) The Depositary or its nominee, as registered owner of a Global Security, shall be
the Holder of such Global Security for all purposes under this Indenture and the
Securities, and owners of beneficial interests in a Global Security shall hold such
interests pursuant to the Applicable Procedures. Accordingly, any such owner’s beneficial
interest in a Global Security shall be shown only on, and the transfer of such interest
shall be effected only through, records maintained by the Depositary or its nominee or its
Agent Members and such owners of beneficial interests in a Global Security shall not be
considered the owners or holders thereof.



     (b) Non-Global Securities. Securities issued upon the events described in Section 3.03(a)(ii)
shall be in definitive, fully registered form, without interest coupons.



     Section 3.04. Execution, Authentication, Delivery and Dating.



     The Securities shall be executed on behalf of the Company by any Officer. The signature of any
Officer on the Securities may be manual or facsimile.



     Securities bearing the manual or facsimile signatures of an individual who was at any time the
proper Officer of the Company shall bind the Company, notwithstanding that such individual ceased
to hold such office prior to the



33









 








authentication and delivery of such Securities or did not hold such office at the date of such
Securities.



     At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities executed by the Company to the Trustee for authentication, together
with a Company Order for the authentication and delivery of such Securities; and the Trustee in
accordance with such Company Order shall authenticate and deliver such Securities as in this
Indenture provided and not otherwise.



     Each Security shall be dated the date of its authentication.



     No Security shall be entitled to any benefit under this Indenture or be valid or obligatory
for any purpose unless there appears on such Security a certificate of authentication substantially
in the form provided for herein executed by the Trustee by manual or facsimile signature, and such
certificate upon any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any
Security shall have been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in
Section 3.10, for all purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the benefits of this
Indenture.



     The Company may, subject to Article 10 of this Indenture and applicable law, issue under this
Indenture Additional Securities; provided, however, that the Company may not issue Additional
Securities if an Event of Default with respect to any Outstanding Securities shall have occurred
and be continuing at the time of such issuance. All Securities issued under this Indenture shall be
treated as a single class for all purposes under this Indenture.



     Section 3.05. Temporary Securities.



     Pending the preparation of definitive Securities, the Company may execute, and upon Company
Order the Trustee shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their execution of such Securities.



     If temporary Securities are issued, the Company will cause definitive Securities to be
prepared without unreasonable delay. After the preparation of definitive Securities, the temporary
Securities shall be exchangeable for definitive Securities upon surrender of the temporary
Securities at any office or agency of the Company designated pursuant to Section 10.02, without
charge to the Holder.



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Upon surrender for cancellation of any one or more temporary Securities the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount
of definitive Securities of authorized denominations. Until so exchanged the temporary Securities
shall in all respects be entitled to the same benefits under this Indenture as definitive
Securities.



     Section 3.06. Registrar, Registration of Transfer and Exchange; Paying Agent.



     (a) Registrar. The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other office or agency
designated pursuant to Section 10.02 being herein sometimes collectively referred to as the
“Security Register”) in which, subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of Securities and for the transfers or exchange of
Securities. The Trustee is hereby appointed “Security Registrar” for the purpose of registering
Securities and transfers and exchanges of Securities as herein provided. The Company may change the
Security Registrar without notice to any Holder. The Company or any of its Subsidiaries may act as
Security Registrar.



     Upon surrender for registration of transfer of any Security at an office or agency of the
Company designated pursuant to Section 10.02 for such purpose, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee or transferees,
one or more new Securities of any authorized denomination, provided that such denomination is a
minimum of $1,000 or an integral multiple thereof, and of a like aggregate principal amount, each
such Security bearing such restrictive legends as may be required by this Indenture.



     At the option of the Holder and subject to the other provisions of this Section 3.06 and to
Section 3.10, Securities may be exchanged for other Securities of any authorized denominations and
of a like tenor and aggregate principal amount, upon surrender of the Securities to be exchanged at
such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the
exchange is entitled to receive.



     All Securities issued upon any registration of transfer or exchange of Securities shall be the
valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Securities surrendered upon such registration of transfer or exchange.



     Every Security presented or surrendered for registration of transfer or for exchange shall (if
so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing. As a condition to the
registration of transfer



35









 







of any Restricted Securities, the Company or the Trustee may require evidence satisfactory to
them as to the compliance with the restrictions set forth in the legend of such Securities.



     Except as provided in the following sentence and in Section 3.10, all Securities originally
issued hereunder and all Securities issued upon registration of transfer or exchange or replacement
thereof shall be Restricted Securities and shall bear the legends required by Section 2.02 and
Section 2.04, unless the Company shall have delivered to the Trustee (and the Security Registrar,
if other than the Trustee) a Company Order stating that the Security is not a Restricted Security
and may be issued without such legend thereon. Securities that are issued upon registration of
transfer of, or in exchange for, Securities that are not Restricted Securities shall not be
Restricted Securities and shall not bear such legend.



     No service charge shall be made for any registration of transfer or exchange of Securities,
but the Company may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.05, Section 9.06 or Section 12.03 not
involving any transfer.



     (b) Restrictions on Transfer. Beneficial ownership of every Restricted Security shall be
subject to the restrictions on transfer provided in the legends required to be set forth on the
face of each Restricted Security pursuant to Section 2.02 and
Section 2.04, unless such
restrictions on transfer shall be terminated in accordance with this Section 3.06(b) or Section
3.10. The Holder of each Restricted Security, by such Holder’s acceptance thereof, agrees to be
bound by such restrictions on transfer.



     The restrictions imposed by this Section 3.06 and by Section 2.02 and Section 3.10 upon the
transferability of any particular Restricted Security shall cease and terminate upon such
Restricted Security having been sold pursuant to an effective Resale Registration Statement under
the Securities Act or transferred in compliance with Rule 144 under the Securities Act (or any
successor provision thereto). The Company shall inform the Trustee in writing of the effective
date of any Resale Registration Statement registering the Securities under the Securities Act. The
Trustee shall not be liable for any action taken or omitted to be taken by it in good faith in
accordance with the aforementioned Resale Registration Statement.



     Any Restricted Security as to which the restrictions on transfer shall have expired in
accordance with their terms or shall have terminated may, upon surrender of such Restricted
Security for exchange to the Security Registrar in accordance with the provisions of this Section
3.06, be exchanged for a new Security, of like tenor and aggregate Principal Amount, which shall
not bear the restrictive legends required by Section 2.02. At the Company’s request on no less
than 10 calendar days’ notice, the Trustee shall deliver, in the Company’s name



36









 







and at its expense, to each Holder at such Holder’s address appearing in the register of
Holders a notice of the expiration of the legend set forth in Section 2.02. The Company shall
provide, and the Trustee shall be entitled to rely upon, an Officer’s Certificate in form
reasonably acceptable to the Trustee to the effect that such exchange of the Restricted Security to
a new Security shall be effected in compliance with the Securities Act and that the restrictions on
transfer contained herein and in the legend set forth in Section 2.02 shall no longer be required
in order to maintain compliance with the Securities Act.



     As used in the preceding three paragraphs of this Section 3.06, the term “transfer”
encompasses any sale, pledge, transfer or other disposition of any Restricted Security.



     (c) Paying Agent. The Company shall maintain an office or agency where Securities may be
presented for payment (the “Paying Agent”). The Company initially appoints the Trustee as Paying
Agent for the Securities. The Company may have one or more additional paying agents and the term
“Paying Agent” shall include any such additional paying agent.



     The Company shall enter into an appropriate agency agreement with any Paying Agent not a party
to this Indenture, which shall incorporate the terms of the Trust Indenture Act, except in the case
of a Paying Agent that acts as Paying Agent solely in connection with the repurchase of the
Securities pursuant to Article 11 of this Indenture. The agreement shall implement the provisions
of this Indenture that relate to such agent. The Company shall notify the Trustee of the name and
address of each such agent. If the Company fails to maintain a Paying Agent, the Trustee shall act
as such and shall be entitled to appropriate compensation therefor pursuant to Section 6.07. The
Company or any Subsidiaries may act as Paying Agent.



     The Company may remove any Paying Agent upon written notice to such Paying Agent and to the
Trustee; provided, however, that no such removal shall become effective until (i) acceptance of any
appointment by a successor as evidenced by an appropriate agreement entered into by the Company and
such successor Paying Agent, as the case may be, and delivered to the Trustee or (ii) notification
to the Trustee that the Trustee or the Company shall serve as Paying Agent until the appointment of
a successor in accordance with clause (i) above. The Paying Agent may resign at any time upon
written notice to the Company and the Trustee.



     (d) Paying Agent to Hold Money in Trust. By no later than 11:00 a.m., New York City time, on
the date on which any principal of or interest and Additional Interest, if any, on any Security is
due and payable, the Company shall deposit with the Paying Agent a sum sufficient in immediately
available funds to pay such principal or interest (including any Additional Interest), when due.
The Company shall require each Paying Agent (other than the Trustee) to agree in writing that such
Paying Agent shall hold in trust for the benefit of Security



37









 









holders or the Trustee all money held by such Paying Agent for the payment of principal of or
interest (including any Additional Interest), on the Securities and shall notify the Trustee in
writing of any default by the Company in making any such payment. If the Company or a Subsidiary
acts as Paying Agent, it shall segregate the money held by it as Paying Agent and hold it as a
separate trust fund. The Company at any time may require a Paying Agent (other than the Trustee) to
pay all money held by it to the Trustee and to account for any funds disbursed by such Paying
Agent. Upon complying with this Section 3.06, the Paying Agent (if other than the Company or a
Subsidiary) shall have no further liability for the money delivered to the Trustee. Upon any
bankruptcy, reorganization or similar proceeding with respect to the Company, the Trustee shall
serve as Paying Agent for the Securities.



     (e) Custodian. The Company hereby appoints the Trustee as Custodian with respect to any
Global Securities.



     Section 3.07. Mutilated, Destroyed, Lost and Stolen Securities.



     If any mutilated Security is surrendered to the Trustee, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a new Security of like tenor and
principal amount and bearing a number not contemporaneously outstanding.



     If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction
of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be
required by them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and deliver, in lieu of any
such destroyed, lost or stolen Security, a new Security of like tenor and principal amount and
bearing a number not contemporaneously outstanding.



     In case any such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, the Company in its discretion may, instead of issuing a new Security, pay
such Security.



     Upon the issuance of any new Security under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.



     Every new Security issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security shall constitute an original additional contractual obligation of the Company, whether or
not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with any and all other
Securities duly issued hereunder.



38









 







     The provisions of this Section are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost
or stolen Securities.



     Section 3.08. Payment of Interest; Interest Rights Preserved.



     Interest on any Security which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular Record Date for such
interest.



     In the case of Securities represented by a Global Security registered in the name of or held
by a Depository or its nominee, payment of principal, premium, if any, and interest, if any, will
be made to the Depository or its nominee, as the case may be, as the registered owner or Holder of
such Global Security. None of the Company, the Trustee and the Paying Agent, any Authenticating
Agent or the Security Registrar for such Securities will have any responsibility or liability for
any aspect of the records relating to or payments made on account of a beneficial ownership
interest in a Global Security or maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.



     Subject to the foregoing provisions of this Section, each Security delivered under this
Indenture upon registration of transfer of or in exchange for or in lieu of any other Security
shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.



     Subject to the provisions of Article 12 hereof, in the case of any Security which is converted
after any Regular Record Date and on or prior to the next succeeding Interest Payment Date (other
than any Security whose Maturity is prior to such Interest Payment Date), interest whose Stated
Maturity is on such Interest Payment Date shall be payable on such Interest Payment Date
notwithstanding such conversion, and such interest (whether or not punctually paid or duly provided
for) shall be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on such Regular Record Date. Except as otherwise
expressly provided in the immediately preceding sentence or in Article 12 hereof, in the case of
any Security (or any part thereof) which is converted, interest whose Stated Maturity is after the
date of conversion of such Security (or any part thereof) shall not be payable.



     Section 3.09. Persons Deemed Owners.



     Prior to due presentment of a Security for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of principal of and
(subject to Section 3.08) interest on such Security and for all other purposes whatsoever, whether
or not



39









 







such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.



     In the case of a Global Security, so long as the Depository for such Global Security, or its
nominee, is the registered owner of such Global Security, such Depository or such nominee, as the
case may be, will be considered the sole owner or Holder of the Securities represented by such
Global Security for all purposes under this Indenture. Except as provided in Section 3.06, owners
of beneficial interests in a Global Security will not be entitled to have Securities that are
represented by such Global Security registered in their names, will not receive or be entitled to
receive physical delivery of such Securities in definitive form and will not be considered the
owners or Holders thereof under this Indenture.



     Notwithstanding the foregoing, with respect to any Global Security, nothing herein shall (a)
prevent the Company, the Trustee, or any agent of the Company or the Trustee, from giving effect to
any written certification, proxy or other authorization furnished by a Depository or (b) impair, as
between a Depository and holders of beneficial interest in any Global Security, the operation of
customary practices governing the exercise of the rights of the Depository as Holder of such Global
Security.



     Section 3.10. Cancellation and Transfer Provisions.



     (a) All Securities surrendered for payment, redemption, registration of transfer or exchange
or conversion shall, if surrendered to any Person other than the Trustee, be delivered to the
Trustee and shall be promptly cancelled by it. The Company may at any time deliver to the Trustee
for cancellation any Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person
for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder
which the Company has not issued and sold, and all Securities so delivered shall be promptly
cancelled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted by this Indenture.
All cancelled Securities held by the Trustee shall be disposed of in accordance with its customary
procedures. Copies of all cancelled Securities shall be provided to the Company by the Trustee,
promptly following cancellation of such Securities.



     (b) Transfers to QIBs. The following provisions shall apply with respect to the registration
of any proposed transfer of a Security constituting a Restricted Security to a QIB:




     (i) the Security Registrar shall register the transfer if such transfer is being made
by a proposed transferor who has checked the box provided for on the form of Security
stating, or has otherwise advised the Company and the Security Registrar in writing, that
the sale has been made in compliance with the provisions of Rule 144A to a transferee who



40









 









has signed the certification provided for on the form of Security stating, or has
otherwise advised the Company and the Security Registrar in writing, that it is purchasing
the Security for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a QIB within the meaning of Rule
144A, and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as it has
requested pursuant to Rule 144A or has determined not to request such information and that
it is aware that the transferor is relying upon its foregoing representations in order to
claim the exemption from registration provided by Rule 144A; and




     (ii) if the proposed transferee is an Agent Member, and the Securities to be
transferred consist of non-Global Securities which after transfer are to be evidenced by
an interest in the Global Security, upon receipt by the Security Registrar of instructions
given in accordance with the Depositary’s and the Security Registrar’s procedures, the
Security Registrar shall reflect on its books and records the date and an increase in the
Principal Amount of the Global Security in an amount equal to the Principal Amount of the
non-Global Securities to be transferred, and the Trustee shall cancel the non-Global
Securities so transferred.



     (c) Private Placement Legend. Upon the registration of transfer, exchange or replacement of
Securities not bearing the legends required by Section 2.02, the Security Registrar shall deliver
Securities that do not bear such legend. Upon the registration of transfer, exchange or
replacement of Securities bearing the legend required by Section 2.02, the Security Registrar shall
deliver Securities that do not bear such legend in the case of a registration of transfer, exchange
or replacement pursuant to an effective shelf registration statement as contemplated by the
Registration Rights Agreement or upon the Securities becoming, and during the period the Securities
remain eligible to be transferred without registration under the Securities Act by a person who is
not an affiliate of the Company (and has not been an affiliate of the Company for the 90 days
preceding such transfer) pursuant to Rule 144 under the Securities Act (or any other similar
provision then in force (other than Rule 144A)) without any volume or manner of sale restrictions,
and, in any event, on the day that is one year following the last date of original issuance of the
Securities (including through the exercise of the Initial Purchasers’ option to purchase additional
Securities) following a Company Order stating that the Security is not a Restricted Security and
may be issued without a legend thereon and thereafter cause the Securities to be represented by a
certificate bearing a CUSIP number that is no longer a “restricted” CUSIP that indicates that
transfer restrictions apply to the Securities or the Common Stock issuable upon conversion thereof.



     (d) General. By its acceptance of any Security bearing the legends required by Section 2.02
and Section 2.04, each Holder of such a Security acknowledges the restrictions on transfer of such
Security set forth in this



41









 








Indenture and in such legends and agrees that it will transfer such Security only as provided
in this Indenture. None of the Company or any Subsidiary of the Company shall purchase or sell any
Security after the date hereof, except as required under the terms of this Indenture.



     The Security Registrar shall retain, in accordance with its customary procedures, copies of
all letters, notices and other written communications received pursuant to this Section 3.10. The
Company shall have the right to inspect and make copies of all such letters, notices or other
written communications at any reasonable time upon the giving of reasonable written notice to the
Security Registrar.



     Section 3.11. CUSIP Numbers.



     The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use), and,
if so, the Trustee shall use CUSIP numbers in all notices to Holders as a convenience to Holders of
the Securities; provided, that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or on such notice and that reliance
may be placed only on the other identification numbers printed on the Securities. The Company will
promptly notify the Trustee in writing of any change in the CUSIP numbers.



     Section 3.12. Computation of Interest.



     Interest on the Securities shall be computed on the basis of a 360-day year of twelve 30-day
months.



     Section 3.13. Special Record Date.



     Any interest on any Security that is payable but not punctually paid or duly provided for on
any Interest Payment Date (“Defaulted Interest”) shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of his, her or its having been such a Holder, and
such Defaulted Interest may be paid by the Company, at its election in each case, as provided in
clause (a) or (b) below:



     (a) The Company may elect to make payment of any Defaulted Interest to Holders in whose names
the Securities are registered at the close of business on a special record date for the payment of
such Defaulted Interest (a “Special Record Date”), which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the Defaulted Interest proposed to be paid on
each Security and the date of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be held in trust for the
benefit of the Holders entitled to such Defaulted Interest as in this clause provided.



42









 






Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 calendar days and not less than 10 calendar days prior to
the date of the proposed payment and not less than 10 calendar days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of
such Special Record Date and, in the name and at the expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to the Holders of the Securities at their addresses as they appear in
the Note Register, or by such other means reasonably acceptable to such Holders, not less than 10
calendar days prior to such Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been mailed as aforesaid, such Defaulted
Interest shall be paid to the Persons in whose names the Securities (or their predecessor
Securities) are registered at the close of business on such Special Record Date and shall no longer
be payable pursuant to the following clause (b).




     (b) The Company may make payment of any Defaulted Interest on the Securities in any other
lawful manner not inconsistent with the requirements of any automated quotation system or
securities exchange on which the Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.



ARTICLE 4

Satisfaction And Discharge




     Section 4.01. Satisfaction and Discharge of Indenture.



     This Indenture shall cease to be of further effect (except as to any surviving rights of
conversion, registration of transfer or exchange of Securities herein expressly provided for), and
the Trustee, on demand of and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when



     (a) either




     (i) all Outstanding Securities theretofore authenticated and delivered (other than
(A) Securities which have been destroyed, lost or stolen and which have been replaced or
paid as provided in Section 3.07 and (B) Securities for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as provided in Section
10.03) have been delivered to the Trustee for cancellation; or



43









 








     (ii) all such Outstanding Securities not theretofore delivered to the Trustee for
cancellation




     (A) have become due and payable, or




     (B) will become due and payable at their Stated Maturity within one year,
and




     (C) the Company, in the case of (A) or (B) above, has deposited or caused
to be deposited with the Trustee as trust funds in trust for the purpose, lawful
money of the United States or U.S. Government Obligations which through the
payment of interest and principal in respect thereof in accordance with their
terms will provide lawful money not later than the due dates of principal or
interest, or any combination thereof in an amount sufficient to pay and
discharge the entire indebtedness on such Securities not theretofore delivered
to the Trustee for cancellation, for principal (and premium, if any) and
interest to the date of such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity or Fundamental Change
Repurchase Date, as the case may be;



     (b) the Company has paid or caused to be paid all other sums payable hereunder by the Company;
and



     (c) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied with.


Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to
the Trustee under Section 6.07, the obligations of the Trustee to any Authenticating Agent under
Section 6.14 and, if money shall have been deposited with the Trustee pursuant to subclause (ii) of
Clause (a) of this Section, the obligations of the Trustee under Section 4.02 and the last
paragraph of Section 10.03 shall survive.




     Section 4.02. Application of Trust Money.



     Subject to the provisions of the last paragraph of Section 10.03, all funds or U.S. Government
Obligations deposited with the Trustee pursuant to Section 4.01 shall be held in trust and applied
by it, in accordance with the provisions of the Securities and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Persons entitled thereto, of the principal and interest for
whose payment such funds or U.S. Government Obligations have been deposited with the Trustee. Upon
termination of the trust established pursuant to Section 4.01, all funds and/or U.S. Government
Obligations deposited with the



44









 








Trustee pursuant to Section 4.01 (and held by it or any Paying Agent) for the payment of
Securities subsequently converted shall promptly be returned to the Company upon Company Request.



ARTICLE 5

Remedies




     Section 5.01. Events of Default.



     “Event of Default”, wherever used herein, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):



     (a) default in the payment of any interest (including Additional Interest) on any Security
when due and payable, and the default continues for a period of 30 days; or



     (b) default in the payment of the principal of any Security when due and payable at its Stated
Maturity, upon required repurchase, upon acceleration or otherwise; or



     (c) failure by the Company to comply with its obligation to convert the Securities into shares
of Common Stock or Reference Property, as applicable, upon exercise of a Holder’s conversion right;
or;



     (d) failure by the Company to comply with its obligations under Article 8; or



     (e) failure by the Company to issue a Fundamental Change Repurchase Right Notice in accordance
with Section 11.01 when due; or



     (f) failure by the Company for 60 days after written notice from the Trustee or the Holders of
at least 25% principal amount of the Outstanding Securities has been received by the Company to
comply with any of its other agreements contained in the Securities or this Indenture; or



     (g) default by the Company or any of its Significant Subsidiaries with respect to any
mortgage, agreement or other instrument under which there may be outstanding, or by which there may
be secured or evidenced, any debt for money borrowed in excess of $25,000,000 in the aggregate of
the Company and/or any subsidiary of the Company, whether such debt now exists or shall hereafter
be created, which default shall have resulted (i) in such debt becoming or being declared due and
payable and such debt has not been discharged in full or such declaration rescinded or annulled
within 30 days or (ii) from a failure to pay the



45









 







principal of any such debt when due and payable at its Stated Maturity, upon required
repurchase, upon declaration or otherwise; or



     (h) failure by the Company or any of its Significant Subsidiaries, within 60 days, to pay,
bond or otherwise discharge any judgments or orders for the payment of money the total uninsured
amount of which for the Company or any of its Subsidiaries exceeds in the aggregate $25,000,000
(after giving effect to any insurance coverage provided by a solvent, reputable and unaffiliated
insurance company that has acknowledged coverage), which are not stayed on appeal; or



     (i) the Company or any of its Significant Subsidiaries shall commence a voluntary case or
other proceeding seeking liquidation, reorganization or other relief with respect to itself or its
debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking
the appointment of a trustee, receiver, liquidator, custodian or other similar official of the
Company or any of its Significant Subsidiaries or any substantial part of its respective property,
or shall consent to any such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against it, or shall make a general
assignment for the benefit of creditors, or shall fail generally to pay its debts as they become
due; or



     (j) an involuntary case or other proceeding shall be commenced against the Company or any of
its Significant Subsidiaries seeking liquidation, reorganization or other relief with respect to it
or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of
the Company or any of its Significant Subsidiaries or any substantial part of its respective
property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a
period of sixty (60) consecutive calendar days.



     Section 5.02. Acceleration of Maturity; Rescission and Annulment.



     If an Event of Default occurs and is continuing, then and in every such case except as
provided below, the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities may declare the principal of all the Securities to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and
upon any such declaration such principal shall become immediately due and payable. However, upon an
Event of Default arising out of Section 5.01(i) or Section 5.01(j) (except with respect to any
Significant Subsidiary) the aggregate principal of all the Securities, plus accrued and unpaid
interest (including Additional Interest, if any) to the acceleration date, shall be due and payable
immediately without notice from the Trustee or Holders.



     Notwithstanding the foregoing, at the election of the Company, the sole remedy of Holders for
an Event of Default resulting from the failure by the Company to comply with its obligations under
Section 314(a)(1) of the Trust



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Indenture Act relating to the Company’s failure to file any documents or reports that the
Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act or of
its covenants set forth in Section 7.04 (any such Event of Default, a “Reporting Default”), shall
for the first 120 calendar days after the occurrence of such an Event of Default consist
exclusively of the right (the “Extension Right”) to receive an extension fee on the Securities at
an annual rate equal to 0.25% of the principal amount of the Securities (the “Extension Fee”). On
the 121st day after such Reporting Default (if such violation is not cured or waived
prior to such 121st calendar day), then the Trustee or the Holders of not less than 25%
in principal amount of the Outstanding Securities may declare the principal of and accrued and
unpaid interest on all such Securities to be due and payable immediately.



     If the Company elects to pay the Extension Fee as the sole remedy for the Reporting Default,
the Company shall (i) notify in writing the Holders, the Paying Agent and the Trustee of such
election at any time on or before the close of business on the first Business Day following the
date on which such Event of Default first occurs and (ii) pay the Extension Fee on all outstanding
Securities on or before the close of business on the date immediately following the date of such
notice. Unless and until a Responsible Officer of the Trustee receives at the Corporate Trust
Office such a certificate, the Trustee may assume without inquiry that the Extension Fee is not
payable. Upon the Company’s failure to timely provide notice or pay the Extension Fee as provided
in this Section 5.02, the Securities shall be subject to acceleration as provided in the first
paragraph of this Section 5.02. If the Extension Fee has been paid by the Company directly to the
Persons entitled to it, the Company shall deliver to the Trustee a certificate setting forth the
particulars of such payment.



     Notwithstanding the foregoing paragraph, if an event of default occurs under any series of the
Company’s debt securities (other than the Securities ) issued subsequent to the Issue Date
resulting from the Company’s failure to comply with its obligations under Section 314(a)(1) of the
Trust Indenture Act relating to the Company’s failure to file any documents or reports that the
Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act, and
such event of default is not subject to extension on terms similar to those set forth in the
foregoing paragraph and results in the principal amount of such debt securities becoming due and
payable, then the Extension Right shall no longer apply and the Securities shall be subject to
acceleration as provided in the first paragraph of this Section 5.02.



     This Section 5.02, however, is subject to the conditions that if, at any time after the
principal of the Securities shall have been so declared due and payable, and before any judgment or
decree for the payment of the monies due shall have been obtained or entered as hereinafter
provided, the Company shall pay or shall deposit with the Trustee a sum sufficient to pay
installments of accrued and unpaid interest upon all Securities and the principal of any and all
Securities that shall have become due otherwise than by acceleration (with interest on overdue



47









 








installments of accrued and unpaid interest (to the extent that payment of such interest is
enforceable under applicable law) and on such principal at the rate borne by the Securities during
the period of such Default), and if (a) rescission would not conflict with any judgment or decree
of a court of competent jurisdiction and (b) any and all Events of Default under this Indenture
with respect to such Securities, other than the nonpayment of principal of and accrued and unpaid
interest on such Securities or failure to deliver amounts due upon conversion that shall have
become due solely by such acceleration, shall have been cured or waived pursuant to Section 5.13,
then and in every such case the Holders of a majority in aggregate principal amount of the
Outstanding Securities, by written notice to the Company and to the Trustee, may waive all Defaults
or Events of Default with respect to the Securities and rescind and annul such declaration and its
consequences and such Default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured for every purpose of this Indenture; but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent Default or Event of
Default, or shall impair any right consequent thereon. No rescission or annulment referred to above
shall affect any subsequent Default or impair any right consequent thereon.



     Section 5.03. Collection Suit by Trustee.



     If an Event of Default specified in Section 5.01(a) or (b) occurs and is continuing, the
Trustee is authorized to recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount of principal of, premium, if any, interest, and Additional
Interest, if any, remaining unpaid on the Notes and interest on overdue principal and premium, if
any, and, to the extent lawful, interest and Additional Interest, if any, and such further amount
as shall be sufficient to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.



     Section 5.04. Trustee May File Proofs of Claim.



     In case of any judicial proceeding relative to the Company (or any other obligor upon the
Securities), its property or its creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions authorized under the
Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and receive any moneys or
other property payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 6.07.



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     No provision of this Indenture shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.



     Section 5.05. Trustee May Enforce Claims Without Possession of Securities.



     All rights of action and claims under this Indenture or the Securities may be prosecuted and
enforced by the Trustee without the possession of any of the Securities or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in
respect of which such judgment has been recovered.



     Section 5.06. Application of Money Collected.



     Any money or property money collected by the Trustee pursuant to this Article shall be applied
in the following order, at the date or dates fixed by the Trustee and, in case of the distribution
of such money on account of principal or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:



     FIRST: To the payment of all amounts due the Trustee, its agents and attorneys under Section
6.07, including payment of all compensation, expense and liabilities incurred, and all advances
made by the Trustee, and the costs and expenses of collection;



     SECOND: To Holders of the Securities for the payment of the amounts then due and unpaid for
principal of and interest (including Additional Interest), if any on the Securities in respect of
which or for the benefit of which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such Securities for principal and
interest, respectively; and



     THIRD: The balance, if any, to the Company or to such party as a court of competent
jurisdiction shall direct.



     Section 5.07. Limitation on Suits.



     Subject to Section 5.08, no Holder of any Security shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture or the Securities, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless




49











 





     (a) such Holder has previously given written notice to the Trustee that an Event of Default is
continuing;



     (b) the Holders of not less than 25% in principal amount of the Outstanding Securities shall
have made written request to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;



     (c) such Holder or Holders have offered to the Trustee security or indemnity satisfactory to
the Trustee against the costs, expenses and liabilities to be incurred in compliance with such
request;



     (d) the Trustee for 60 days after its receipt of such notice, request and offer of security or
indemnity has failed to institute any such proceeding; and



     (e) no direction inconsistent with such written request has been given to the Trustee during
such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities;


it being understood and intended that no one or more Holders shall have any right in any manner
whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or
prejudice the rights of any other Holders, or to obtain or to seek to obtain priority or preference
over any other Holders or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.




     Section 5.08. Unconditional Right of Holders to Receive Principal and Interest and to
Convert.



     Notwithstanding any other provision in this Indenture, the Holder of any Security shall have
the right, which is absolute and unconditional, to receive payment of the principal of and (subject
to Section 3.08) interest on such Security on the respective Stated Maturities expressed in such
Security and to convert such Security in accordance with Article 12 and to institute suit for the
enforcement of any such payment and right to convert, and such rights shall not be impaired without
the consent of such Holder.



     Section 5.09. Restoration of Rights and Remedies.



     If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in every such case, subject to
any determination in such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such proceeding had been
instituted.



50









 





     Section 5.10. Rights and Remedies Cumulative.



     Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 3.07, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.



     Section 5.11. Delay or Omission Not Waiver.



     No delay or omission of the Trustee or of any Holder of any Security to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee (subject to the limitations contained in this
Indenture) or by the Holders, as the case may be.



     Section 5.12. Control by Holders.



     The Holders of a majority in principal amount of the Outstanding Securities shall have the
right to direct the time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on the Trustee, provided that



     (a) such direction shall not be in conflict with any rule of law or with this Indenture, and



     (b) the Trustee may refuse to follow any direction that the Trustee determines in good faith
may be unduly prejudicial to the rights of the Holders of the Securities or that may involve the
Trustee in personal liability and may take any other action deemed proper by the Trustee which is
not inconsistent with such direction or this Indenture.



     Section 5.13. Waiver of Past Defaults.



     The Holders of not less than a majority in principal amount of the Outstanding Securities by
written notice to the Trustee may on behalf of the Holders of all the Securities waive any past
default hereunder and its consequences, except a default



     (a) in the payment of the principal of or interest on any Security, or



51









 





     (b) in respect of a covenant or provision hereof which under Article 9 cannot be modified or
amended without the consent of the Holder of each Outstanding Security affected.



     Upon any such waiver, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any right consequent thereon.



     Section 5.14. Undertaking for Costs.



     In any suit for the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken, suffered or omitted by it as Trustee, a court may require
any party litigant in such suit to file an undertaking to pay the costs of such suit, and may
assess costs against any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided, that neither this Section nor the Trust Indenture Act shall be deemed to
authorize any court to require such an undertaking or to make such an assessment in any suit
instituted by the Company or in any suit for the enforcement of the right to convert any Security
in accordance with Article 12.



     Section 5.15. Waiver of Stay or Extension Laws.



     The Company covenants (to the extent that it may lawfully do so) that it will not at any time
insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any
usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants
that it will not hinder, delay or impede the execution of any power herein granted to the Trustee,
but will suffer and permit the execution of every such power as though no such law had been
enacted.



ARTICLE 6

The Trustee




     Section 6.01. Certain Duties and Responsibilities.



     The duties and responsibilities of the Trustee shall be as provided by the Trust Indenture
Act. Notwithstanding the foregoing, no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the performance of any
of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or indemnity satisfactory to the
Trustee against any loss, costs, liability or expense is not reasonably assured to it. Whether or
not therein expressly so provided, every provision of this Indenture



52









 







relating to the conduct or affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Section. No provision of this Indenture shall be
construed to relieve the Trustee from liability for its own negligent action, its own negligent
failure to act or its own bad faith or willful misconduct, subject to Section 6.03.



     In case an Event of Default has occurred (which has not been cured or waived), the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his own affairs. The Trustee, however, may refuse to follow any
direction that conflicts with law or this Indenture or that the Trustee determines is unduly
prejudicial to the rights of any other Holder, or that would involve the Trustee in personal
liability. Prior to taking any action under this Indenture, the Trustee will be entitled to
indemnification satisfactory to it in its sole discretion against all losses and expenses caused by
taking or not taking such action.



     Section 6.02. Notice of Defaults.



     The Trustee shall give the Holders notice of any default known to the Trustee that has
occurred and is continuing hereunder within 90 days after such default has occurred. Except in the
case of the default in the payment of principal of or interest on any Security or conversion
default, the Trustee need not deliver the notice if and so long as a committee of trust officers of
the Trustee in good faith determines that withholding the notice is in the interests of Holders. In
addition, the Trustee shall give the Holders of Securities notice of any default actually known to
it as and to the extent provided by the Trust Indenture Act. For the purpose of this Section, the
term “default” means any event which is, or after notice or lapse of time or both would become, an
Event of Default.



     Section 6.03. Certain Rights of Trustee.



     Subject to the provisions of Section 6.01:



     (a) the Trustee may rely and shall be protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper party or parties;



     (b) any request or direction of the Company mentioned herein shall be sufficiently evidenced
by a Company Request or Company Order and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;



     (c) whenever in the administration of this Indenture the Trustee shall deem it desirable that
a matter be proved or established prior to taking, suffering or omitting any action hereunder, the
Trustee may, in the absence of bad faith on



53









 







its part, rely upon an Officer’s Certificate or an Opinion of Counsel, or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in reliance on such
Officer’s Certificate or Opinion of Counsel;



     (d) the Trustee may consult with counsel and the written advice of such counsel or any Opinion
of Counsel shall be full and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;



     (e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture,
unless such Holders shall have offered to the Trustee reasonable security or indemnity satisfactory
to the Trustee against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;



     (f) the Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney; and



     (g) the Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or attorney appointed with
due care by it hereunder.



     Section 6.04. Not Responsible for Recitals or Issuance of Securities.



     The recitals contained herein and in the Securities, except the Trustee’s certificates of
authentication, shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee shall not be accountable for the
use or application by the Company of Securities or the proceeds thereof.



     Section 6.05. May Hold Securities.



     The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the owner or pledgee of
Securities and, subject to Section 6.08 and Section 6.13, may otherwise deal with the Company with
the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.



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     Section 6.06. Money Held in Trust.



     Money held by the Trustee in trust hereunder need not be segregated from other funds except to
the extent required by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company.



     Section 6.07. Compensation and Reimbursement.



     The Company agrees



     (a) to pay to the Trustee from time to time reasonable compensation as shall be agreed in
writing between the Company and the Trustee for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);



     (b) except as otherwise expressly provided herein, to reimburse the Trustee upon its request
for all reasonable expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense, disbursement or
advance as may be attributable to its negligence, bad faith or willful misconduct; and



     (c) to indemnify the Trustee for, and to hold it harmless against, any loss, liability or
expense incurred without negligence, bad faith or willful misconduct on its part, arising out of or
in connection with the acceptance or administration of this trust, including the costs and expenses
of defending itself against any claim or liability in connection with the exercise or performance
of any of its powers or duties hereunder.



     (d) the obligations of the Company under this Section 6.07 shall survive the satisfaction and
discharge of this Indenture or the earlier resignation or removal of the Trustee.



     Section 6.08. Disqualification; Conflicting Interests.



     If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the
manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.



     Section 6.09. Corporate Trustee Required; Eligibility.



     There shall at all times be a Trustee hereunder which shall be a Person that is eligible
pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus of at
least $50,000,000. If such Person publishes reports of condition at least annually, pursuant to law
or to the requirements of said



55









 







supervising or examining authority, then for the purposes of this Section, the combined
capital and surplus of such Person shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.



     Section 6.10. Resignation and Removal; Appointment of Successor.



     (a) No resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of appointment by the
successor Trustee under Section 6.11.



     (b) The Trustee may resign at any time by giving written notice thereof to the Company. If an
instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within
30 days after the giving of such notice of resignation, the resigning Trustee may, at the expense
of the Company, petition any court of competent jurisdiction for the appointment of a successor
Trustee.



     (c) The Trustee may be removed at any time by Act of the Holders of a majority in principal
amount of the Outstanding Securities, delivered to the Trustee and to the Company.



     (d) If at any time:




     (i) the Trustee shall fail to comply with Section 6.08 after written request therefor
by the Company or by any Holder who has been a bona fide Holder of a Security for at least
six months, or




     (ii) the Trustee shall cease to be eligible under Section 6.09 and shall fail to
resign after written request therefor by the Company or by any such Holder, or




     (iii) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,


then, in any such case, (A) the Company by a Board Resolution may remove the Trustee, or (B)
subject to Section 5.14, any Holder who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.




     (e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy
shall occur in the office of Trustee for any cause, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee. If,



56









 







within one year after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee shall be appointed by Act of the Holders of a majority in principal
amount of the Outstanding Securities delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee and supersede the successor Trustee appointed by the Company. If no successor
Trustee shall have been so appointed by the Company or the Holders and accepted appointment in the
manner hereinafter provided, any Holder who has been a bona fide Holder of a Security for at least
six months may, on behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee. Notwithstanding replacement of
the Trustee pursuant to this Section 6.10, the Company’s obligations under Section 6.07 hereof
shall continue for the benefit of the retiring Trustee.



     (f) The Company shall give notice of each resignation and each removal of the Trustee and each
appointment of a successor Trustee to all Holders. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.



     Section 6.11. Acceptance of Appointment by Successor.



     In case of the appointment hereunder of a successor Trustee, such successor Trustee shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on request of
the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder. Upon the reasonable written
request of any such successor Trustee, the Company shall execute any and all instruments for more
fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and
trusts.



     No successor Trustee shall accept its appointment unless at the time of such acceptance such
successor Trustee shall be qualified and eligible under this Article.



     Section 6.12. Merger, Conversion, Consolidation or Succession to Business.



     Any corporation into which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any



57









 







corporation succeeding to all or substantially all the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be
otherwise qualified and eligible under this Article, without the execution or filing of any paper
or any further act on the part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect as if such successor Trustee had
itself authenticated such Securities.



     Section 6.13. Preferential Collection of Claims Against Company.



     If and when the Trustee shall be or become a creditor of the Company (or any other obligor
upon the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act
regarding the collection of claims against the Company (or any such other obligor).



     Section 6.14. Appointment of Authenticating Agent.



     The Trustee may appoint an Authenticating Agent or Agents which shall be authorized to act on
behalf of the Trustee to authenticate Securities issued upon original issue and upon exchange,
registration of transfer, partial conversion or pursuant to Section 3.06, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s
certificate of authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of
not less than $50,000,000 and subject to supervision or examination by Federal or State authority.
If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or
to the requirements of said supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition so published. If
at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of
this Section, such Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.



     Any corporation into which an Authenticating Agent may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion or consolidation to
which such Authenticating Agent shall



58









 









be a party, or any corporation succeeding to all or substantially all the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent,
provided such corporation shall be otherwise eligible under this Section, without the execution or
filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.



     An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee
and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be acceptable to the Company and shall deliver
written notice of such appointment by first-class mail, postage prepaid, to all Holders as their
names and addresses appear in the Security Register, or by such other means reasonably acceptable
to such Holders. Any successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor hereunder, with like
effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall
be appointed unless eligible under the provisions of this Section.



     The Trustee agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section, and the Trustee shall be entitled to be
reimbursed for such payments, subject to the provisions of Section 6.07.



     If an appointment is made pursuant to this Section, the Securities may have endorsed thereon,
in addition to the Trustee’s certificate of authentication, an alternative certificate of
authentication in the following form:



     This is one of the Securities described in the within-mentioned Indenture.



	 	 	 	 	 	 	 
	 	 	WELLS FARGO BANK, N.A.,	 	 
	 	 	     as Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:

Title: Authenticating Agent
	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:

Title: Authorized Officer
	 	 







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ARTICLE 7

Holders’ Lists And Reports By Trustee And Company




     Section 7.01. Company to Furnish Trustee Names and Addresses of Holders.



     If the Trustee is not the Security Registrar, the Company will furnish or cause to be
furnished to the Trustee



     (a) semi-annually, not more than 5 days after each Regular Record Date, a list, in such form
as the Trustee may reasonably require, of the names and addresses of the Holders as of such Regular
Record Date, and



     (b) at such other times as the Trustee may request in writing, within 30 days after the
receipt by the Company of any such request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished,


excluding from any such list names and addresses received by the Trustee in its capacity as
Security Registrar.




     Section 7.02. Preservation of Information; Communications to Holders.



     (a) The Trustee shall preserve, in as current a form as is reasonably practicable, the names
and addresses of Holders contained in the most recent list furnished to the Trustee as provided in
Section 7.01 and the names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 7.01
upon receipt of a new list so furnished.



     (b) The rights of Holders to communicate with other Holders with respect to their rights under
this Indenture or under the Securities, and the corresponding rights and duties of the Trustee,
shall be as provided by the Trust Indenture Act.



     (c) Every Holder of Securities, by receiving and holding the same, agrees with the Company and
the Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of any disclosure of information as to names and addresses of Holders made
pursuant to the Trust Indenture Act.



     Section 7.03. Reports by Trustee.



     (a) The Trustee shall transmit to Holders such reports concerning the Trustee and its actions
under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto.



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     (b) A copy of each such report shall, at the time of such transmission to Holders, be filed by
the Trustee with each stock exchange upon which the Securities are listed, with the Commission and
with the Company. The Company will notify the Trustee when the Securities are listed on any stock
exchange.



     Section 7.04. Reports by Company.



     The Company shall file with the Commission information, documents or reports required to be
filed with the Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
and shall file with the Trustee within 30 days after the same is so required to be filed with the
Commission (after giving effect to any extension pursuant to Rule 12b-25 under the Exchange Act or
any successor or similar provision) and shall otherwise comply with the requirements of Trust
Indenture Act Section 314(a); provided that any such information, documents or reports filed or
furnished with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval (or
EDGAR) system shall be deemed to be filed with the Trustee as of the time such information,
documents or reports are filed or furnished via EDGAR.



     If at any time the Company is not subject to Sections 13 or 15(d) of the Exchange Act, the
Company shall, so long as any of the Securities shall, at such time, constitute “Restricted
Securities” within the meaning of Rule 144(a)(3) under the Securities Act, promptly provide to the
Trustee, each Holder, beneficial owner or prospective purchaser of such Securities or the Common
Stock issuable upon conversion thereof, the information required to be delivered pursuant to Rule
144A(d)(4) under the Securities Act to facilitate the resale of such Securities pursuant to Rule
144A under the Securities Act and to take such other actions as any such Person may reasonably
request, all to the extent required from time to time to enable such Person to sell its Securities
or Common Stock issuable upon conversion thereof in accordance with Rule 144A under the Securities
Act, as such rule may be amended from time to time.



     Delivery of such reports, information and documents to the Trustee is for informational
purposes only, and the Trustee’s receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained therein, including the
Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to
conclusively rely exclusively on an Officer’s Certificate).



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ARTICLE 8

Consolidation, Merger, Conveyance, Transfer Or Lease




     Section 8.01. Company May Consolidate, Etc., Only on Certain Terms.



     The Company shall not consolidate with or merge into any other Person or convey, transfer or
lease all or substantially all of its properties and assets to any Person, unless:



     (a) in case the Company shall consolidate with or merge into another Person or convey,
transfer or lease all or substantially all of its properties and assets to any Person (whereby the
Company is not the surviving Person), the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer, or which leases, all or
substantially all of the properties and assets of the Company shall be a Person organized and
validly existing under the laws of the United States of America, any State thereof or the District
of Columbia and such Person (if not the Company) shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, the due and punctual payment of the
principal of and interest on all the Securities and the performance or observance of every covenant
of this Indenture on the part of the Company to be performed or observed and shall have provided
for conversion rights in accordance with Section 12.01 and, to the extent that the Company has
ongoing obligations pursuant to the Registration Rights Agreement, any obligations of the Company
set forth in the Registration Rights Agreement;



     (b) immediately after giving effect to such transaction, no Event of Default, and no event
which, after notice or lapse of time or both, would become an Event of Default, shall have happened
and be continuing; and



     (c) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction, such supplemental indenture
complies with this Article and that all conditions precedent herein provided for relating to such
transaction have been complied with.



     Section 8.02. Successor Substituted.



     Upon any consolidation of the Company with, or merger of the Company into, any other Person or
any conveyance, transfer or lease of all or substantially all of the properties and assets of the
Company in accordance with Section 8.01, the successor Person formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor Person had been named as the Company herein,
and thereafter, except in the case of a lease, the



62









 







predecessor Person shall be relieved of all obligations and covenants under this Indenture and
the Securities. If the Company is still in existence after the transaction, it will be released
from its obligations and covenants hereunder and the under the Securities, except in the case of a
lease of all or substantially all the properties or assets of the Company.



ARTICLE 9

Modification And Amendment




     Section 9.01. Supplemental Indentures Without Consent of Holders.



     Without the consent of any Holders, the Company, when authorized by a Board Resolution, and
the Trustee, at any time and from time to time, may enter into one or more indentures supplemental
hereto, for any of the following purposes:



     (a) to cure any ambiguity, manifest error, defect or omission or inconsistency; provided that
in the case of any omission or inconsistency the rights of the Holders are not adversely affected
in any material respect; or



     (b) to provide for the assumption by a successor corporation of our obligations under this
Indenture; or



     (c) to add guarantees with respect to the Securities; or



     (d) to provide for a successor Trustee in accordance with the terms of this Indenture or to
otherwise comply with any requirement of this Indenture; or



     (e) to provide for the issuance of Additional Securities, to the extent that the Company and
the Trustee deem such amendment necessary or advisable in connection with such issuance; provided
that no such amendment or supplement may impair the rights or interests of any Holder of the
Outstanding Securities; or



     (f) to increase the Conversion Rate; or



     (g) to secure the Securities; or



     (h) to add to the Company’s covenants for the benefit of the Holders or to surrender any right
or power conferred upon the Company; or



     (i) to make provision with respect to the conversion rights of Holders pursuant to the
requirements of Section 12.01; or



     (j) to make any change that does not adversely affect the rights of any Holder in any material
respect; provided that any amendment to conform the terms of this Indenture or the Securities to
the “Description of the Notes” section



63









 







of the Company’s final offering memorandum dated June 19, 2008 relating to the offering of the
Securities will not be deemed to be adverse to any Holder; or



     (k) to comply with any requirement of the SEC in connection with the qualification of this
Indenture under the Trust Indenture Act.



     Section 9.02. Supplemental Indentures with Consent of Holders.



     With the consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities, by Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture or of modifying in any manner the
rights of the Holders under this Indenture, including without limitation, consents obtained in
connection with a purchase of, or tender offer or exchange offer for, the Securities, and, subject
to certain exceptions, any past default or compliance with any provisions may be waived with the
consent of the Holders of a majority principal amount of the Outstanding Securities, including,
without limitation, consents obtained in connection with a purchase of, or a tender offer or
exchange offer for, the Securities; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Security affected thereby,



     (a) reduce the percentage in principal amount of the Outstanding Securities, the consent of
whose Holders is required for any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture; or



     (b) reduce the rate, or extend the stated time for payment, of interest (including Additional
Interest) on any Security or reduce the amount, or extend the stated time for payment, of the
Extension Fee; or



     (c) reduce the principal, or change the Stated Maturity, of any Security; or



     (d) adversely affect the right to convert any Security as provided in Article 12; or



     (e) reduce the Fundamental Change Repurchase Price of any Security or amend or modify in any
manner adverse to the Holders the Company’s obligation to make such payment, whether through
amendment or waiver of provisions of this Indenture; or



     (f) change the place of payment where, or the coin or currency in which, any of the principal,
interest (including Additional Interest), if any, or the Extension Fee, in respect of any Security
is payable; or



64









 





     (g) impair the right of any Holder to receive payment of principal of and interest on such
Holder’s Securities on or after the due dates therefore or to institute suit for the enforcement of
any payment on or with respect to such Holder’s Securities; or



     (h) adversely affect the ranking of the Securities as the Company’s senior unsecured
indebtedness; or



     (i) modify any of the provisions of this Section or Section 5.13, except to increase any such
percentage or to provide that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security affected thereby;



     It shall not be necessary for any Act of Holders under this Section to approve the particular
form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve
the substance thereof.



     Section 9.03. Execution of Supplemental Indentures.



     In executing, or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and (subject to Section 6.01) shall be fully protected in
relying upon, an Opinion of Counsel and an Officer’s Certificate stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights,
duties or immunities under this Indenture or otherwise.



     After a supplemental indenture permitted by this Article becomes effective, the Company shall
promptly issue a notice to the Holders (pursuant to the requirements of Section 1.06) briefly
describing the terms of such supplemental indenture. Failure to give such notice to the Holders,
or any defect in such notice, will not, however, impair or affect the validity of the applicable
supplemental indenture.



     Section 9.04. Effect of Supplemental Indentures.



     Upon the execution of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby.



     Section 9.05. Conformity with Trust Indenture Act.



     Every supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act.



65









 





     Section 9.06. Reference in Securities to Supplemental Indentures.



     Securities authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities so modified as to conform, in the opinion of the Trustee
and the Company, to any such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding Securities.



ARTICLE 10

Covenants




     Section 10.01. Payment of Principal and Interest.



     The Company will duly and punctually pay the principal of and interest on the Securities in
accordance with the terms of the Securities and this Indenture.



     Section 10.02. Maintenance of Office or Agency.



     The Company will maintain an office or agency (which shall be initially the Corporate Trust
Office) where Securities may be presented or surrendered for payment, where Securities may be
surrendered for registration of transfer or exchange, where Securities may be surrendered for
conversion and where notices and demands to or upon the Company in respect of the Securities and
this Indenture may be served. The Company will give prompt written notice to the Trustee of any
change in the location of such office or agency. If at any time the Company shall fail to maintain
any such required office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.



     The Company may also from time to time designate one or more other offices or agencies where
the Securities may be presented or surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency for such purposes
as provided above. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other office or agency.



66









 





     Section 10.03. Money for Security Payments to Be Held in Trust.



     If the Company shall at any time act as its own Paying Agent, it will, on or before each due
date of the principal of or interest on any of the Securities, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal or interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to act.



     Whenever the Company shall have one or more Paying Agents, it will, prior to each due date of
the principal of or interest on any Securities, deposit with a Paying Agent a sum sufficient to pay
such amount, such sum to be held as provided by the Trust Indenture Act, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to
act.



     The Company will cause each Paying Agent other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the
provisions of this Section, that such Paying Agent will (i) comply with the provisions of the Trust
Indenture Act applicable to it as a Paying Agent and (ii) during the continuance of any default by
the Company (or any other obligor upon the Securities) in the making of any payment in respect of
the Securities, upon the written request of the Trustee, forthwith pay to the Trustee all sums held
in trust by such Paying Agent as such.



     The Company may at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.



     Subject to any applicable abandoned property law, any money deposited with the Trustee or any
Paying Agent, or then held by the Company, in trust for the payment of the principal of or interest
on any Security and remaining unclaimed for two years after such principal or interest has become
due and payable shall be paid to the Company on Company Request, or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the Company cause to be
published once, in a newspaper published in the English language, customarily published on each
Business Day and of general circulation in New York, New York, notice that such money remains
unclaimed and that,



67









 







after a date specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid to the Company.



     Section 10.04. Statement by Officers as to Default.



     The Company will deliver to the Trustee, within 120 days after the end of each fiscal year of
the Company ending after the date hereof, an Officer’s Certificate, stating whether or not to the
best knowledge of the signers thereof the Company is in default in the performance and observance
of any of the terms, provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be in default,
specifying all such defaults and the nature and status thereof of which they may have knowledge.



     In addition, the Company will deliver to the Trustee, within 30 days after the occurrence
thereof, written notice of any events that would constitute an Event of Default, the status of
those events and what action the Company is taking or propose to take in respect thereof.



     Section 10.05. Existence.



     Subject to Article 8, the Company will do or cause to be done all things necessary to preserve
and keep in full force and effect its existence.



     Section 10.06. Additional Interest Under the Registration Rights Agreement.



     If at any time Additional Interest becomes payable by the Company pursuant to the Registration
Rights Agreement, the Company shall promptly deliver to the Trustee a certificate executed by an
officer of the Company who may execute a Company Order to that effect and stating (i) the amount of
such Additional Interest that is payable and (ii) the date on which such Additional Interest is
payable pursuant to the terms of the Registration Rights Agreement. Unless and until a Responsible
Officer of the Trustee receives such a certificate, the Trustee may assume without inquiry that no
Additional Interest is payable. If the Company has paid Additional Interest directly to the
Persons entitled to such Additional Interest, the Company shall deliver to the Trustee a
certificate setting forth the particulars of such payment.



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ARTICLE 11

Repurchase At Option Of The Holder




     Section 11.01. Repurchase at the Option of the Holder Upon a Fundamental Change.



     (a) If a Fundamental Change occurs at any time, then each Holder shall have the right, at such
Holder’s option, to require the Company to repurchase all of such Holder’s Securities or any
portion of principal amount thereof that is equal to $1,000 or an integral multiple of $1,000, for
cash on a date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less
than 15 calendar days and not more than 35 calendar days after the date of the Fundamental Change
Repurchase Right Notice at a repurchase price equal to 100% of the principal amount of the
Securities to be repurchased, together with accrued and unpaid interest thereon to, but excluding,
the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless such
Fundamental Change Repurchase Date falls after a Regular Record Date and on or prior to the
corresponding Interest Payment Date, in which case the Company will pay the full amount of accrued
and unpaid interest payable on such Interest Payment Date to the Holder of record at the close of
business on the corresponding Regular Record Date.



     Repurchases of Securities under this Section 11.01 shall be made, at the option of the Holder
thereof, upon:




     (i) if the Securities are held in certificated form, delivery to the Trustee (or
other Paying Agent appointed by the Company) by a Holder of a duly completed notice (the
“Fundamental Change Repurchase Notice”) in the form set forth on the reverse of the
Security or, if the Securities are held in global form, a notice that complies with the
Applicable Procedures, prior to the close of business on the Business Day immediately
preceding the Fundamental Change Repurchase Date; and




     (ii) if the Securities are Global Securities, delivery or book-entry transfer of the
Securities to the Depository pursuant to the Applicable Procedures at any time after
delivery of the Fundamental Change Repurchase Notice, such delivery being a condition to
receipt by the Holder of the Fundamental Change Repurchase Price therefor;




provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this
Section 11.01 only if the Security so delivered to the Trustee (or other Paying Agent appointed
by the Company) shall conform in all respects to the description thereof in the related
Fundamental Change Repurchase Notice.



     The Fundamental Change Repurchase Notice shall state:



69









 






     (A) if certificated, the certificate numbers of the Securities to be
delivered for repurchase;




     (B) the portion of the principal amount of the Securities to be
repurchased, which must be $1,000 or an integral multiple thereof; and




     (C) that the Securities are to be repurchased by the Company pursuant to
the applicable provisions of the Securities and this Indenture.



     Any repurchase by the Company contemplated pursuant to the provisions of this Section 11.01
shall be consummated by the delivery of the consideration to be received by the Holder promptly
following the later of the Fundamental Change Repurchase Date and the time of the book-entry
transfer or delivery of the Security.



     The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company
of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal
thereof in accordance with the provisions of subsection (c) of this Section 11.01.



     Any Security that is to be repurchased only in part shall be surrendered to the Trustee (with,
if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by the Holder thereof or his
attorney duly authorized in writing), and the Company shall execute, and the Trustee shall
authenticate and make available for delivery to the Holder of such Security without service charge,
a new Security or Securities, containing identical terms and conditions, each in an authorized
denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion
of the principal of the Security so surrendered.



     (b) After the occurrence of a Fundamental Change, but on or before the 10th calendar day after
the Effective Date of such Fundamental Change, the Company shall provide to all Holders of record
of the Securities and the Trustee and Paying Agent a notice in writing (the “Fundamental Change
Repurchase Right Notice”) of the occurrence of such Fundamental Change and of the repurchase right,
at the option of the Holders arising as a result thereof. Such mailing shall be by first class
mail.



     Each Fundamental Change Repurchase Right Notice shall specify (if applicable):




     (i) the events causing the Fundamental Change;




     (ii) the date of the Fundamental Change;



70









 








     (iii) the last date on which a Holder may exercise its repurchase right under this
Section 11.01, if applicable;




     (iv) the Fundamental Change Repurchase Price, if applicable;




     (v) the Fundamental Change Repurchase Date, if applicable;




     (vi) the name and address of the Paying Agent and the Conversion Agent, if
applicable;




     (vii) the applicable Conversion Rate and any adjustments to the applicable Conversion
Rate;




     (viii) that the Securities with respect to which a Fundamental Change Repurchase
Notice has been delivered by a Holder may be converted only if the Holder withdraws the
Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and




     (ix) the procedures the Holder must follow to require the Company to repurchase its
Securities under this Section 11.01, if applicable.



     No failure of the Company to give the foregoing notices and no defect therein shall limit the
Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the
Securities pursuant to this Section 11.01.



     (c) A Fundamental Change Repurchase Notice may be withdrawn by means of a written notice of
withdrawal delivered to the Paying Agent at any time prior to the close of business on the Business
Day prior to the Fundamental Change Repurchase Date (the “Fundamental Change Expiration Time”),
specifying:


     (i) the principal amount of the withdrawn Securities and, if certificated Securities
have been issued, the certificate numbers of the withdrawn Securities,



     (ii) the principal amount of the Securities with respect to which such notice of
withdrawal is being submitted, and



     (iii) the principal amount, if any, of such Security that remains subject to the
original Fundamental Change Repurchase Notice, which portion must be in principal amounts
of $1,000 or an integral multiple of $1,000;



provided, however, that if the Securities are not in certificated form, the notice must comply with
the Applicable Procedures.




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     (d) On or prior to 11:00 a.m., New York City time, on the Fundamental Change Repurchase Date,
the Company shall deposit with the Trustee (or other Paying Agent appointed by the Company or if
the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided
in Section 6.06) an amount of money sufficient to repurchase on the Fundamental Change Repurchase
Date all of the Securities to be repurchased on such date at the Fundamental Change Repurchase
Price. Subject to receipt of funds and/or Securities by the Trustee (or other Paying Agent
appointed by the Company), payment for Securities surrendered for repurchase (and not withdrawn)
prior to the Fundamental Change Expiration Time shall be made promptly after the later of (x) the
Fundamental Change Repurchase Date with respect to such Security (provided the Holder has satisfied
the conditions to the payment of the Fundamental Change Repurchase Price in this Section 11.01),
and (y) the time of book-entry transfer or the delivery of such Security to the Trustee (or other
Paying Agent appointed by the Company) by the Holder thereof in the manner required by this Section
11.01 by mailing checks for the amount payable to the Holders of such Securities entitled thereto
as they shall appear in the Register; provided, however, that all payments shall be subject to
Section 11.01(a) and payments to the Depositary shall be made by wire transfer of immediately
available funds to the account of the Depositary or its nominee. The Trustee shall, promptly after
such payment and upon written demand by the Company, return to the Company any funds in excess of
the Fundamental Change Repurchase Price.



     (e) If the Trustee (or other Paying Agent appointed by the Company) holds money sufficient to
repurchase on the Fundamental Change Repurchase Date all the Securities or portions thereof that
are to be purchased as of the Business Day following the Fundamental Change Repurchase Date, then
on and after the Fundamental Change Repurchase Date (i) such Securities shall be cancelled and
cease to be Outstanding, (ii) interest (including Additional Interest), if any, shall cease to
accrue on such Securities, and (iii) all other rights of the Holders of such Securities shall
terminate, whether or not book-entry transfer of the Securities has been made or the Securities
have been delivered to the Trustee or Paying Agent, other than the right to receive the Fundamental
Change Repurchase Price and previously accrued and unpaid interest (including Additional Interest),
if any, upon delivery or transfer of the Securities.



     (f) No Securities may be repurchased at the option of Holders upon a Fundamental Change if the
principal amount of the Securities has been accelerated, and such acceleration has not been
rescinded, on or prior to such date.




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ARTICLE 12

Conversion Of Securities




     Section 12.01. Conversion Privilege and Conversion Rate.



     (a) General. Upon compliance with the provisions of this Article, a Holder shall have the
right, at such Holder’s option, to convert all or any portion of principal amount (if the portion
of principal amount to be converted is equal to $1,000 or an integral multiple of $1,000) of such
Security at any time prior to the close of business on the third Scheduled Trading Day immediately
preceding the Maturity Date, at a rate (the “Conversion Rate”) per $1,000 principal amount of the
Securities to be converted (the “Conversion Obligation”) determined as follows:




     (i) If the Applicable Stock Price is less than or equal to the Base Conversion Price, the
Conversion Rate shall be the Base Conversion Rate.




     (ii) If the Applicable Stock Price is greater than the Base Conversion Price, the
Conversion Rate shall be determined in accordance with the following formula:



	 	 	 	 	 	 	 	 
	Base Conversion Rate + 
 
	é
ê
ë	é
ê
ë	  the Applicable Stock Price – the Bace Conversion Price 
	ù
ú
û	 X the Incremental Share Factor 
	ù
ú
û	 
	 

the Appliction Stock Price
	 	 	 






     (b) The Conversion Rate per $1,000 principal amount of Securities to be converted, including
any Additional Shares (as defined in Section 12.02(b) below) added to the Conversion Rate in
connection with a Make-Whole Fundamental Change shall not exceed 19.0440 shares of Common Stock,
subject to adjustment in the manner set forth under Section 12.05 (the “Maximum Conversion Cap”).



     (c) The number of shares issuable pursuant to the Incremental Share Factor in excess of the
Base Conversion Rate will not exceed 6.5837 shares of Common Stock per $1,000 principal amount of
Securities (the “Incremental Share Cap”). The Incremental Share Cap shall be subject to adjustment
proportional to adjustments to the Incremental Share Factor.



     Section 12.02. Conversion in connection with a Make-Whole Fundamental Change.



     (a) If a Make-Whole Fundamental Change occurs, the Company shall notify in writing each of the
Holders and the Trustee of the occurrence of any such event or transaction and issue a press
release on the Effective Date of such Make-Whole Fundamental Change.



     (b) If a Holder elects to convert Securities in connection with a Make-Whole Fundamental
Change that occurs prior to the Maturity Date, the Base
Conversion Rate shall be increased by an additional number of shares of Common Stock (the
“Additional Shares”) as described below; provided, however, that no



73









 







such increase will be made in
the case of a merger or consolidation under clause (1) of the definition of Fundamental Change or
any event specified under clause (2) of such definition, in each case, if at least 90% of the
consideration paid for the Common Stock (excluding cash payments for fractional shares and cash
payments made pursuant to dissenters’ appraisal rights and cash dividends) in connection with such
event consists of shares of common stock or American Depositary Receipts in respect of shares of
common stock traded on any of the New York Stock Exchange, the American Stock Exchange, the NASDAQ
Global Market or the NASDAQ Global Select Market (or any of their respective successors) (or will
be so traded or quoted immediately following the completion of the merger or consolidation or such
other transaction) and, as a result of such transaction or transactions the Securities become
convertible into such shares of such common stock or such American Depositary Receipts pursuant to
Section 12.11. A conversion shall be deemed to be in connection with a Make-Whole Fundamental
Change if such conversion occurs on or after the Effective Date of a Make-Whole Fundamental Change
and prior to the close of business on the Business Day immediately preceding the related
Fundamental Change Repurchase Date. In addition, the Company shall settle conversions of such
Securities by delivering Reference Property (as defined in Section 12.11(b) below) equivalent to
shares of Common Stock based on the increased applicable Conversion Rate resulting from such
Make-Whole Fundamental Change. Notwithstanding the foregoing, if the holders of Common Stock
receive only cash consideration for their shares of Common Stock in connection with a Make-Whole
Fundamental Change, the Company shall settle conversions in connection with such Fundamental Change
on the third Business Day immediately following the Conversion Date by delivering cash Reference
Property based on the increased applicable Conversion Rate resulting from such Make-Whole
Fundamental Change, and shall compute such applicable Conversion Rate using an Applicable Stock
Price equal to the cash amount paid per share of Common Stock in such Fundamental Change.




     (i) The number of Additional Shares by which the Base Conversion Rate shall be
increased in the event of a Make-Whole Fundamental Change shall be determined by reference
to the table attached as Schedule A hereto, based on the earliest of date on which the
Make-Whole Fundamental Change is publicly announced, occurs or becomes effective (the
“Make-Whole Reference Date”) and the Stock Price paid per share of Common Stock in the
Make-Whole Fundamental Change; provided that if the actual Stock Price is between two
Stock Price amounts in the table or the Make-Whole Reference Date is between two
Make-Whole Reference Dates in the table, the number of Additional Shares shall be
determined by a straight-line interpolation between the number of Additional Shares set
forth for the next higher and next lower Stock Price amounts and the two nearest Effective
Dates, as applicable, based on a 365-day year; provided further that if (A) the Stock
Price is
greater than $400.00 per share of Common Stock (subject to adjustment in the same
manner as set forth in Section 12.05), no adjustments shall be



74









 







made to the Base Conversion
Rate, and (B) the Stock Price is less than $52.51 per share (subject to adjustment in the
same manner as set forth in Section 12.05), no adjustments shall be made to the Base
Conversion Rate. Notwithstanding the foregoing, in no event shall the applicable
Conversion Rate exceed 19.0440 shares of common stock per $1,000 principal amount of
Securities (subject to adjustment in the same manner as the Base Conversion Rate and the
Incremental Share Factor as set forth in Section 12.05). If holders of Common Stock
receive only cash consideration for their shares of Common Stock in connection with a
Fundamental Change, the Stock Price shall be the cash amount paid per share. Otherwise,
the Stock Price shall be the average of the Last Reported Sale Prices of Common Stock over
the five-Trading Day period ending on the Trading Day preceding the date on which such
Make-Whole Fundamental Change occurs or becomes effective.




     (ii) The Stock Prices set forth in the first column of the table in Schedule A hereto
(i.e., the row headers) shall be adjusted as of any date on which the Base Conversion Rate
of the Securities is adjusted. The adjusted Stock Prices shall equal the Stock Prices
applicable immediately prior to such adjustment, multiplied by a fraction, the numerator
of which is the Base Conversion Rate in effect immediately prior to the adjustment giving
rise to the Stock Price adjustment and the denominator of which is the Base Conversion
Rate as so adjusted. The number of Additional Shares within the table shall be adjusted in
the same manner as the Base Conversion Rate as set forth in Section 12.05.



     Section 12.03. Exercise of Conversion Privilege.



     (a) Subject to subsection (b) below, the Company shall satisfy the Conversion Obligation with
respect to each $1,000 principal amount of Securities tendered for conversion by delivering on the
third Business Day immediately following the last Trading Day of the relevant Averaging Period a
number of shares of Common Stock equal to the applicable Conversion Rate for each $1,000 principal
amount of Securities converted; provided, however, that the Company will deliver cash in lieu of
fractional shares of Common Stock as provided in Section 12.04.



     (b) Before any Holder of a Securities shall be entitled to convert the same as set forth
above, such Holder shall (i) in the case of a Global Securities, comply with the Applicable
Procedures for converting a beneficial interest in a Global Security and, if required, pay funds
equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as
set forth in subsection (g) of this Section 12.03 and, if required, pay all taxes or duties, if
any, and (ii) in the case of a Security issued in certificated form, (A) complete and manually sign
and deliver an irrevocable written notice to the Conversion Agent
in the form set forth under Section 2.05 (or a facsimile thereof) (a “Notice of Conversion”)
at the office of the Conversion Agent, which such Notice of



75









 









Conversion shall state in writing
therein the principal amount of Securities to be converted and the name or names (with addresses)
in which such Holder wishes the certificate or certificates for any shares of Common Stock, if any,
to be delivered upon settlement of the Conversion Obligation to be registered, (B) surrender such
Securities, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement
and transfer documents), at the office of the Conversion Agent, (C) if required, pay funds equal to
interest payable on the next Interest Payment Date to which such Holder is not entitled as set
forth in subsection (g) of this Section 12.03, (D) if required, pay all transfer or similar taxes,
if any and (E) if required, furnish appropriate endorsements and transfer documents. A Security
shall be deemed to have been converted immediately prior to the close of business on the date (the
“Conversion Date”) that the Holder has complied with the requirements set forth in this
subsection (b).



     No Notice of Conversion with respect to any Securities may be tendered by a Holder thereof if
such Holder has also tendered a Fundamental Change Repurchase Notice and not validly withdrawn such
Fundamental Change Repurchase Notice in accordance with the applicable provisions of Section 11.01.



     If more than one Security shall be surrendered for conversion at one time by the same Holder,
the Conversion Obligation with respect to such Securities, if any, that shall be payable upon
conversion shall be computed on the basis of the aggregate principal amount of the Securities (or
specified portions thereof to the extent permitted thereby) so surrendered.



     (c) Delivery of the amounts owing in satisfaction of the Conversion Obligation shall be made
by the Company in no event later than the date specified in subsections (a) or (b), as applicable,
of this Section 12.03. The Company shall make such delivery by paying the cash amount owed, if any,
to the Holder of the Securities surrendered for conversion, or such Holder’s nominee or nominees,
and/or by issuing, or causing to be issued, and delivering to such Holder, or such Holder’s nominee
or nominees, certificates or a book-entry transfer through the Depositary for the number of full
shares of Common Stock, if any, to which such Holder shall be entitled as part of such Conversion
Obligation (together with any cash in lieu of fractional shares as provided in Section 12.04).



     (d) In case any Security shall be surrendered for partial conversion, the Company shall
execute and the Trustee shall, as provided in a Company Order, authenticate and deliver to or upon
the written order of the Holder of the Security so surrendered, without charge to such Holder, a
new Security or Securities in authorized denominations in an aggregate principal amount equal to
the unconverted portion of the surrendered Securities.



     (e) Except as provided in Section 12.05, no adjustment shall be made for dividends on any
shares of Common Stock issued upon the conversion of any Security as provided in this Article.



76









 





     (f) Upon the conversion of an interest in a Global Security, the Trustee, or the custodian at
the direction of the Trustee, shall make a notation on such Global Security as to the reduction in
the principal amount represented thereby. The Company shall notify the Trustee in writing of any
conversion of Securities effected through any Conversion Agent other than the Trustee.



     (g) Upon conversion, a Holder shall not receive any separate cash payment for accrued and
unpaid interest except as set forth below. The Company’s settlement of the Conversion Obligation as
described above shall be deemed to satisfy its obligation to pay the principal amount of the
Security and accrued and unpaid interest to, but not including, the Conversion Date. As a result,
accrued and unpaid interest to, but not including, the Conversion Date shall be deemed to be paid
in full rather than cancelled, extinguished or forfeited. Notwithstanding the preceding sentence,
if Securities are converted after 5:00 p.m., New York City time, on a Regular Record Date, Holders
of such Securities as of 5:00 p.m., New York City time, on the Regular Record Date shall receive
the interest payable on such Securities on the corresponding Interest Payment Date notwithstanding
the conversion. Securities surrendered for conversion during the period from and after 5:00 p.m.,
New York City time, on any Regular Record Date to 9:00 a.m., New York City time, on the immediately
following Interest Payment Date must be accompanied by payment of an amount equal to the interest
payable on the Securities so converted; provided, however, that no such payment need be made (i) if
the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date
and on or prior to the corresponding Interest Payment Date; (ii) to the extent of any overdue
interest existing at the time of conversion with respect to such Security; or (iii) with respect to
any Conversion Date that occurs during the period from the close of business on the Regular Record
Date immediately preceding the Maturity Date to the Maturity Date. Except as described above, no
payment or adjustment shall be made for accrued interest on converted Securities.



     (h) Notwithstanding any of the foregoing to the contrary, in lieu of settling the Conversion
Obligation in the manner set forth in Section 12.03(a), the Company may elect (the “Exchange
Election”) to direct the Conversion Agent in writing to surrender, on or prior to the second
Business Day following the Conversion Date, Securities tendered for conversion to a financial
institution designated by the Company (the “Financial Institution”) for exchange in lieu of
conversion. In order to accept any Securities surrendered for conversion, the Financial Institution
must agree to timely deliver, in exchange for such Securities, the shares of Common Stock and cash
in lieu of fractional shares, if any, which would otherwise be due upon conversion as set forth in
Section 12.03(a) (the “Conversion Consideration”). If the Company makes the Exchange Election, the
Company will, by the close of business on the second Business Day following the
relevant Conversion Date, notify Holders surrendering Securities for conversion that the
Company has made the Exchange Election and will notify the Financial Institution of the Conversion
Consideration to be delivered pursuant to Section 12.03(a) and the relevant deadline for delivery
of the Conversion



77









 







Consideration. Any Securities exchanged by the Financial Institution will remain
outstanding. If the Financial Institution agrees to accept Securities for exchange but does not
timely deliver the related Conversion Consideration, or if such Financial Institution does not
accept such Securities for exchange, the Company will deliver the relevant Conversion Consideration
as if the Company had not made the Exchange Election.



     Section 12.04. Fractions of Shares.



     No fractional shares of Common Stock shall be issued upon conversion of any Security or
Securities. If more than one Security shall be surrendered for conversion at one time by the same
Holder, the number of full shares which shall be issuable upon conversion thereof shall be computed
on the basis of the aggregate principal amount of the Securities (or specified portions thereof) so
surrendered. Instead of any fractional share of Common Stock that would otherwise be issuable upon
conversion of any Security or Securities (or specified portions thereof), the Company shall
calculate and pay a cash adjustment in respect of such fraction (calculated to the nearest 1/100th
of a share) based on the Last Reported Sale Price of the Common Stock on the Conversion Date or, if
the Conversion Date is not on a Trading Day, the next following Trading Day.



     Section 12.05. Adjustment of Conversion Rate.



     For purposes of determining any adjustment to the Incremental Share Factor or any other effect
on the Incremental Share Factor, each reference to the Base Conversion Rate appearing in this
Section 12.05 shall be replaced with a reference to the Incremental Share Factor.



     The Base Conversion Rate shall be adjusted from time to time by the Company as follows;
provided that the Company shall not make any adjustments to the Base Conversion Rate if Holders
participate (as a result of holding the Securities, and at the same time as holders of the Common
Stock participate) in any of the transactions described below as if such Holders held the full
number of shares of Common Stock underlying the Securities, without having to convert their
Securities. For purposes of this Section 12.05, each adjustment event that applies to the Base
Conversion Rate shall also be applied to the Incremental Share Factor in the same manner, and all
other references to Base Conversion Rate shall be deemed to refer to both the Base Conversion Rate
and the Incremental Share Factor:



     (a) In case the Company shall issue shares of Common Stock as a dividend or distribution on
shares of the Common Stock, or the Company shall
effect a share split or share combination, the Base Conversion Rate shall be adjusted based on
the following formula:



          CR’ = CR0 x (OS’ / OS0)




where,




78









 









     CR0 = the Base Conversion Rate in effect immediately after the close of
business on day preceding the Ex-date for such dividend or distribution or the effective
date of such share split or combination, as the case may be;




     CR’ = the Base Conversion Rate in effect as of the opening of business on the Ex-date
for such dividend or distribution or the effective date of such share split or
combination, as the case may be;




     OS0 = the number of shares of Common Stock outstanding immediately prior
to the Ex-date for such dividend or distribution or the effective date of such share split
or combination, as the case may be; and




     OS’ = the number of shares of Common Stock outstanding as of the Ex-date for such
dividend or distribution and immediately after giving effect to such dividend or
distribution or immediately after the effective date of such share split or combination,
as the case may be.



     Any adjustment made pursuant to this subsection (a) shall become effective on the date that is
immediately after (x) the Ex-date fixed for such dividend or other distribution, or (y) the
effective date of such split or combination, as applicable. If any dividend or distribution of the
type described in this subsection (a) is declared but not paid or made, the new Base Conversion
Rate shall be readjusted to the Base Conversion Rate that would be in effect if such dividend or
distribution had not been declared.



     (b) In case the Company shall distribute to all or substantially all holders of Common Stock
any rights or warrants (other than, as described below, rights distributed pursuant to a
shareholder rights plan) entitling them for a period of not more than 45 days after the date of
such distribution to subscribe for or purchase shares of Common Stock at a price per share less
than the average of Last Reported Sale Prices of the Common Stock on the ten Trading Days
immediately preceding the Ex-date for such distribution, the Base Conversion Rate shall be adjusted
based on the following formula:



          CR’ = CR0 x ((OS0 + X) / (OS0 + Y))




where,





     CR0 = the Base Conversion Rate in effect immediately after the close of
business on the day preceding the Ex-date for such distribution;




     CR’ = the Base Conversion Rate in effect as of the opening of business on the Ex-date
for such distribution;




     OS0 = the number of shares of Common Stock outstanding immediately prior
to Ex-date for such distribution;



79









 








     X = the total number of shares of Common Stock issuable pursuant to such rights or
warrants; and




     Y = the number of shares of Common Stock equal to the aggregate price payable to
exercise such rights or warrants divided by the average of the Last Reported Sale Prices
of the Common Stock over the 10 consecutive Trading Day period ending on the Trading Day
immediately preceding the Ex-date for the issuance of such rights and warrants.



     For purposes of this subsection (b), in determining whether any rights or warrants entitle the
Holders to subscribe for or purchase shares of Common Stock at less than the applicable Last
Reported Sale Price of the Common Stock, and in determining the aggregate exercise or conversion
price payable for such shares of Common Stock, there shall be taken into account any consideration
received by the Company for such rights or warrants and any amount payable on exercise or
conversion thereof, with the value of such consideration, if other than cash, to be determined by
the Board of Directors. If any right or warrant described in this subsection (b) is not exercised
or converted prior to the expiration of the exercisability or convertibility thereof, the new Base
Conversion Rate shall be readjusted to the Base Conversion Rate that would have been in effect if
our right or warrant had not been issued.



     (c) In case the Company shall distribute shares of any class of Capital Stock of the Company,
evidences of the Company’s indebtedness or other assets or property of the Company to all or
substantially all holders of Common Stock (but excluding dividends or distributions referred to in
subsection (a) or (b) of this Section 12.05, dividends or distributions paid exclusively in cash
referred to in subsection (d) of this Section 12.05 and distributions described below in this
subsection (c) with respect to Spin-Offs) (any of such shares of Capital Stock, indebtedness or
other asset or property hereinafter in this subsection (c) called the “Distributed Property”),
then, in each such case the Base Conversion Rate shall be adjusted based on the following formula:




          CR’ = CR
0 x
(SP0 / (SP0 – FMV))




where,





     CR0 = the Base Conversion Rate in effect immediately after the close of
business on day preceding the Ex-date for such distribution;




     CR’ = the Base Conversion Rate in effect as of the opening of business on the Ex-date
for such distribution;




     SP0 = the average of the Last Reported Sale Prices of Common Stock over
the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the
Ex-date for such distribution; and



80









 






     FMV = the fair market value of the shares of Capital Stock of the Company, evidences
of indebtedness, assets or property distributed with respect to each outstanding share of
Common Stock on the Ex-date for such distribution, in each case as determined by the Board
of Directors.



     With respect to an adjustment pursuant to this subsection (c) where there has been a payment
of a dividend or other distribution to the holders of the Common Stock in shares of Capital Stock
of the Company of any class or series, or similar equity interest, of or relating to a Subsidiary
or other Company business units (a “Spin-Off”), the Base Conversion Rate in effect immediately
before 5:00 p.m., New York City time, on the 10th Trading Day immediately following, and including,
the effective date of the Spin-Off shall be increased based on the following formula:



          CR’ = CR0 x ((FMV0 + MP0) / MP0)




where,





     CR0 = the Base Conversion Rate in effect immediately prior to the 10th
Trading Day immediately following the effective date of the Spin-Off;




     CR’ = the Base Conversion Rate in effect immediately after the 10th Trading Day
immediately following the effective date of the Spin-Off;




     FMV0 = the average of the Last Reported Sale Prices of the Capital Stock
or similar equity interest distributed to holders of Common Stock applicable to one share
of Common Stock over the first 10 consecutive Trading Day period immediately following the
effective date of the Spin-Off; and




     MP0 = the average of the Last Reported Sale Prices of the Common Stock
over the first 10 consecutive Trading Day period immediately following the effective date
of the Spin-Off.



     Such adjustment shall occur on the 10th Trading Day from the effective date of the Spin-Off;
provided that in respect of any conversion within the 10 Trading Days immediately following, and
including, the effective date of any Spin-Off, references in this subsection (c) with respect to
the Spin-Off to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as
have elapsed between the effective date of such Spin-Off and the Conversion Date in determining the
applicable Base Conversion Rate.



     If any such dividend or distribution described in this subsection (c) is declared but not paid
or made, the new Base Conversion Rate shall be readjusted
to be the Base Conversion Rate that would then be in effect if such dividend or distribution
had not been declared.



81









 





     (d) In case the Company shall pay any cash dividends or distributions to all or substantially
all holders of Common Stock, the Base Conversion Rate shall be adjusted based on the following
formula:



          CR’
= CR0 x (SP0 / (SP0 – C))




where,





     CR0 = the Base Conversion Rate in effect immediately after the close of
business on the day preceding the Ex-date for such distribution;




     CR’ = the Base Conversion Rate in effect as of the opening of business on the Ex-date
for such distribution;




     SP0 = the Last Reported Sale Price of the Common Stock on the Trading Day
immediately preceding the Ex-date for such distribution;




     C = the amount in cash per share distributed by the Company to holders of Common
Stock.



     Such adjustment shall become effective immediately after the opening of business on the
Ex-date for such dividend or distribution. If any such dividend or distribution described in this
subsection (d) is declared but not so paid or made, the new Base Conversion Rate shall again be
adjusted to be the Base Conversion Rate that would then be in effect if such dividend or
distribution had not been declared.



     (e) In case the Company or any of its Subsidiaries make a payment in respect of a tender offer
or exchange offer for the Common Stock, to the extent that the cash and value of any other
consideration included in the payment per share of Common Stock exceeds the Last Reported Sale
Price of the Common Stock on the Trading Day next succeeding the last date on which tenders or
exchanges may be made pursuant to such tender or exchange offer, the Base Conversion Rate shall be
increased based on the following formula:



          CR’ = CR0 x ((AC + (SP’ x OS’)) / (OS0 x SP’))




where,





     CR0 = the Base Conversion Rate in effect on the date such tender or
exchange offer expires;




     CR’ = the Base Conversion Rate in effect immediately after the closing of trading on
the Trading Day next succeeding the date such tender or exchange offer expires;



82









 






     AC = the aggregate value of all cash and any other consideration as determined by the
Board of Directors paid or payable for shares purchased in such tender or exchange offer;




     OS0 = the number of shares of Common Stock outstanding immediately prior
to the date such tender or exchange offer expires;




     OS’ = the number of shares of Common Stock outstanding immediately after the date
such tender or exchange offer expires (after giving effect to such tender offer or
exchange offer); and




     SP’ = the Last Reported Sale Price of Common Stock on the Trading Day next succeeding
the date such tender or exchange offer expires.



     Such adjustment shall become effective immediately after close of business on the Trading Day
next succeeding the date such tender or exchange offer expires.



     (f) No adjustment to the Base Conversion Rate shall be made if the application of any of the
formulas set forth in this Section 12.05 (other than in connection with a share combination) would
result in a decrease in the Base Conversion Rate.



     (g) Without limiting the foregoing, no adjustment to the Base Conversion Rate will be made:




     (i) upon the issuance of Common Stock for cash or in connection with an acquisition,
except as otherwise described in this Section 12.05;




     (ii) upon the issuance of any shares of Common Stock pursuant to any plan providing
for the reinvestment of dividends or interest payable on securities of the Company and the
investment of additional optional amounts in shares of Common Stock under any plan;




     (iii) upon the issuance of any shares of Common Stock or options or rights to
purchase or acquire those shares of Common Stock pursuant to any present or future
employee, director or consultant benefit plan or program of or assumed by the Company or
any of its Subsidiaries;




     (iv) upon the issuance of any shares of Common Stock pursuant to any option, warrant,
right, or exercisable, exchangeable or convertible security not described in
clause (iii) above and outstanding prior to the date hereof;




     (v) for a change in the par value of the Common Stock; or



83









 






     (vi) for accrued and unpaid interest.



     (h) All calculations and other determinations under this Article shall be made by the Company
and shall be made to the nearest cent or to the nearest one-ten thousandth (1/10,000) of a share,
as the case may be.



     (i) For purposes of this Section 12.05, the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company but shall include shares
issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock.



     (j) For the avoidance of doubt, if a Holder converts Securities prior to the Effective Date of
a Make-Whole Fundamental Change, and the Fundamental Change does not occur, the Holder shall not be
entitled to Additional Shares in connection with such conversion.



     (k) On and after the Conversion Date with respect to a conversion of Securities pursuant
hereto, all rights of the Holders of such Securities shall terminate, other than the right to
receive the consideration deliverable upon conversion of such Securities as provided herein. A
Holder of a Security is not entitled to any rights of a holder of Common Stock until such Holder
has converted such Security and received upon conversion thereof shares of Common Stock.



     (l) Notwithstanding the foregoing, no adjustment to the Base Conversion Rate shall be required
unless the adjustment would require an increase or decrease of at least 1% of the Base Conversion
Rate. However, the Company shall carry forward any adjustments that are less than 1% of the Base
Conversion Rate that the Company elects not to make and take them into account upon the earlier of
(i) any conversion of Securities and (ii) such time as all adjustments that have not been made
prior thereto would have the effect of adjusting the Base Conversion Rate by at least 1%.



     (m) To the extent that the Company has in effect a rights plan upon a conversion of Securities
into Common Stock, Holders will receive, in addition to such shares of Common Stock and in lieu of
any adjustment to the Base Conversion Rate, rights under the Company’s rights plan, unless, prior
to any conversion, the rights have separated from the Common Stock, in which case the Base
Conversion Rate shall be adjusted at the time of separation as if the Company had distributed to
all holders of Common Stock shares of the Company’s Capital Stock, evidences of the Company’s
indebtedness or other assets of the Company as described in subsection (c) above, subject to
readjustment in the event of the expiration, termination or redemption of such rights.



     (n) If the Indenture requires the Company to calculate an average of the Last Reported Sales
Prices of the Common Stock over a span of multiple days,



84









 







including in connection with the Averaging Period as provided in Section 12.01 and Section
12.03, the Company shall make appropriate adjustments to account for any adjustment to the Base
Conversion Rate that becomes effective, or any event requiring an adjustment to the Base Conversion
Rate where the Ex-date of the event occurs, at any time during the period from which the average is
to be calculated.



     Section 12.06. Notice of Adjustments of Conversion Rate.



     Whenever the Conversion Rate is adjusted as herein provided:



     (a) the Company shall compute the adjusted Conversion Rate in accordance with Section 12.05
and shall prepare a certificate signed by the Chief Financial Officer of the Company setting forth
the adjusted Conversion Rate and showing in reasonable detail the facts upon which such adjustment
is based, and such certificate shall promptly be delivered to the Trustee and to each Conversion
Agent (if other than the Trustee); and



     (b) upon each such adjustment, a notice stating that the Conversion Rate has been adjusted and
setting forth the adjusted Conversion Rate shall be required and shall be provided by the Company
to all Holders.



     If the Company adjusts the Base Conversion Rate pursuant to the provisions of this Section
12.05, the Company shall provide written notification of such adjustment to the Conversion Agent
and the Trustee.



     Neither the Trustee nor any Conversion Agent shall be under any duty or responsibility with
respect to any such certificate or the information and calculations contained therein, except to
exhibit the same to any Holder of Securities desiring inspection thereof at its office during
normal business hours.



     Section 12.07. Company to Reserve Common Stock.



     The Company shall at all times reserve and keep available, free from preemptive rights, out of
its authorized but unissued Common Stock, for the purpose of effecting the conversion of
Securities, the full number of shares of Common Stock then issuable upon the conversion of all
Outstanding Securities.



     Section 12.08. Taxes on Conversions.



     Except as provided in the next sentence, the Company shall pay all documentary, stamp or
similar issue or transfer tax due that may be payable in respect of the issue or delivery of shares
of Common Stock on conversion of Securities pursuant hereto. The Company shall not, however, be
required to pay any tax or duty that may be payable in respect of (i) income of the Holder or
(ii) any transfer involved in the issue and delivery of shares of Common Stock in a name other than
that of the Holder of the Security or Securities to be converted, and no such issue or delivery
shall be made unless and until the Person requesting



85









 







such issue has paid to the Company the amount of any such tax or duty, or has established to
the satisfaction of the Company that such tax or duty has been paid.



     Section 12.09. Certain Covenants.



     Before taking any action which would cause an adjustment reducing the Conversion Rate below
the then par value, if any, of the shares of Common Stock issuable upon conversion of the
Securities, the Company shall take all corporate action which it reasonably determines may be
necessary in order that the Company may validly and legally issue shares of such Common Stock at
such adjusted Conversion Rate.



     The Company covenants that all shares of Common Stock issued upon conversion of Securities
shall be fully paid and non-assessable by the Company and free from all taxes, liens and charges
with respect to the issue thereof.



     The Company further covenants that if at any time the Common Stock shall be listed for trading
on any national securities exchange the Company shall, if permitted and required by the rules of
such exchange, list and keep listed, so long as the Common Stock shall be so listed on such
exchange, all Common Stock issuable upon conversion of the Securities.



     Section 12.10. Cancellation of Converted Securities.



     All Securities surrendered for the purpose of payment, repurchase, conversion or registration
of transfer, shall, if surrendered to the Company or any Paying Agent or any Security Registrar, be
surrendered to the Trustee and promptly canceled by it, or, if surrendered to the Trustee, shall be
promptly canceled by it, and no Securities shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Indenture. The Trustee shall dispose of canceled
Securities in accordance with its customary procedures and shall promptly provide copies of all
cancelled certificates to the Company. If the Company shall acquire any of the Securities, such
acquisition shall not operate as satisfaction of the debt represented by such Securities unless and
until the same are delivered to the Trustee for cancellation.



     Section 12.11. Provision in Case of Effect of Reclassification, Consolidation, Merger or
Sale.



     In the event of (i) any Fundamental Change described in clause (2) of the definition of
Fundamental Change, (ii) any reclassification of the Common Stock (other than a change in par
value, or from par value to no par value, or from no par value to par value, or as a result of a
split, subdivision or combination), (iii) a consolidation, binding share exchange,
recapitalization, reclassification, merger, combination or other similar event of the Company with
another Person or (iv) a sale or conveyance of all or substantially all of the property and assets
of the Company to any other Person, in each case as a result of which holders of Common Stock shall
be entitled to receive cash, securities or other property with



86









 







respect to or in exchange for such Common Stock (any such event described in
clauses (i) through (iv) a “Merger Event”), then:



     (a) the Company or the successor or purchasing Person, as the case may be, shall execute with
the Trustee a supplemental indenture (which shall comply with the Trust Indenture Act as in force
at the date of execution of such supplemental indenture if such supplemental indenture is then
required to so comply) permitted under Section 9.01(d) providing for the conversion and settlement
of the Securities as set forth in this Indenture. Such supplemental indenture shall provide for
adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Article and the Trustee may conclusively rely on the determination by the Company of
the equivalency of such adjustments. If, in the case of any Merger Event, the Reference Property
includes shares of stock or other securities and assets of a company other than the successor or
purchasing company, as the case may be, in such change of control, consolidation, binding share
exchange, recapitalization, reclassification, merger, combination, sale, transfer or conveyance or
Fundamental Change described in clause (2) of the definition of Fundamental Change, then such
supplemental indenture shall also be executed by such other company and shall contain such
additional provisions to protect the interests of the Holders of the Securities as the Board of
Directors shall reasonably consider necessary by reason of the foregoing.



     In the event a supplemental indenture is executed pursuant to this Section 12.11, the Company
shall promptly file with the Trustee an Officer’s Certificate briefly stating the reasons
therefore, the kind or amount of cash, securities or property or assets that will constitute the
Reference Property after any such Merger Event, any adjustment to be made with respect thereto and
that all conditions precedent have been complied with, and shall promptly mail notice thereof to
all Holders.



     If any securities to be provided for the purpose of conversion of Securities hereunder require
registration with or approval of any governmental authority under any federal or state law before
such securities may be validly issued upon conversion, each supplemental indenture executed
pursuant to this Section shall provide that the Company or the successor or the purchasing Person,
as the case may be, or if the Reference Property includes shares of stock or other securities and
assets of a company other than the successor or purchasing company, as the case may be, then such
company, shall use all commercially reasonable efforts, to the extent then permitted by the rules
and interpretations of the SEC (or any successor thereto), to secure such registration or approval
in connection with the conversion of Securities.



     (b) Notwithstanding the provisions of Section 12.03(a) to (b), and subject to the provisions
of Section 12.01, at the effective time of such Merger Event, the right to convert each $1,000
principal amount of Securities shall be changed to a right to convert such Securities by reference
to the kind and amount of cash, securities or other property or assets that a holder of a number of
shares



87









 







of Common Stock would be entitled to receive in respect of each share of Common Stock upon
such Merger Event (the “Reference Property”) based on a Conversion Rate calculated as provided in
Section 12.01 with references to Common Stock replaced by references to the Reference Property
received in such transaction. For purposes of determining the constitution of Reference Property,
the type and amount of consideration that a holder of Common Stock would have been entitled to in
the case of reclassifications, consolidations, mergers, sales or transfers of assets or other
transactions that cause the Common Stock to be converted into the right to receive more than a
single type of consideration determined (based in part upon any form of stockholder election) shall
be deemed to be the (i) weighted average of the types and amounts of consideration received by the
holders of Common Stock that affirmatively make such an election or (ii) if no holders of Common
Stock affirmatively make such election, the types and amounts of consideration actually received by
such holders. None of the foregoing provisions shall affect any right of a Holder of Securities to
convert its Securities in accordance with the provisions of this Article prior to the effective
date of the applicable Merger Event.



     (c) The Company shall cause notice of the execution of a supplemental indenture required by
this Section 12.11 to be provided to each Holder within 20 calendar days after execution thereof.
Failure to deliver such notice shall not affect the legality or validity of such supplemental
indenture.



     (d) The above provisions of this Section shall similarly apply to successive Merger Events.



     Section 12.12. Responsibility of Trustee for Conversion Provisions.



     The Trustee and any Conversion Agent shall not at any time be under any duty or responsibility
to any Holder of Securities to determine whether any facts exist which may require any adjustment
of the Conversion Rate, or with respect to the nature or extent of any such adjustment when made,
or with respect to the method employed, herein or in any supplemental indenture provided to be
employed, in making the same, or whether a supplemental indenture need be entered into. Neither the
Trustee nor any Conversion Agent shall be accountable with respect to the validity or value (or the
kind or amount) of any Common Stock, or of any other securities or property or cash, which may at
any time be issued or delivered upon the conversion of any Securities; and it or they do not make
any representation with respect thereto. Neither the Trustee nor any Conversion Agent shall be
responsible for any failure of the Company to make or calculate any cash payment or to issue,
transfer or deliver any shares of Common Stock or share certificates or other securities or
property or cash upon the surrender of any Security for the purpose of conversion; and the Trustee
and any Conversion Agent shall not be responsible for any failure of the Company to comply with any
of the covenants of the Company contained in this Article.



88









 





     Section 12.13. Right to Set-off Withholding Taxes.



     The Company may, at its option, set-off withholding taxes due with respect to Securities
against payments of cash and Common Stock on the Securities. In the case of any such set-off
against Common Stock delivered upon conversion of the Securities, such Common Stock shall be valued
based on the arithmetic average of the Last Reported Sale Price of the Common Stock in the
5 Trading Days immediately preceding the conversion.



89









 








     IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of
the day and year first above written.



	 	 	 	 	 
	 	LEAP WIRELESS INTERNATIONAL, INC.

 	 
	 	By:  	/s/ S. Douglas Hutcheson
 	 
	 	 	Name:  	S. Douglas Hutcheson 	 
	 	 	Title:  	President and Chief Executive


Officer 	 
	 



[Trustee Signature Follows]





 









 









	 	 	 	 	 
	 	WELLS FARGO BANK, N.A.

  As Trustee

 	 
	 	By:  	/s/ Gregory S. Clarke
 	 
	 	 	Name:  	Gregory S. Clarke 	 
	 	 	Title:  	Vice President 	 
	 



[Signature Page to the Indenture]





 









 











Schedule A




Make-Whole Reference Date




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Stock	 	 	June 25,	 	July 15,	 	July 15,	 	July 15,	 	July 15,	 	July 15,	 	July 15,
	Price	 	 	2008	 	2009	 	2010	 	2011	 	2012	 	2013	 	2014
	$52.51
	 	 	 	8.3150	 	 	 	8.3150	 	 	 	8.3150	 	 	 	8.3150	 	 	 	8.3150	 	 	 	8.3150	 	 	 	8.3150	 
	$55.00
	 	 	 	8.1146	 	 	 	7.5321	 	 	 	7.4528	 	 	 	7.4528	 	 	 	7.4528	 	 	 	7.4528	 	 	 	7.4528	 
	$58.00
	 	 	 	7.8410	 	 	 	7.2358	 	 	 	6.6816	 	 	 	6.5124	 	 	 	6.5124	 	 	 	6.5124	 	 	 	6.5124	 
	$62.00
	 	 	 	7.5478	 	 	 	6.9224	 	 	 	6.3244	 	 	 	5.7283	 	 	 	5.5308	 	 	 	5.4000	 	 	 	5.4000	 
	$67.00
	 	 	 	7.2704	 	 	 	6.6325	 	 	 	5.9983	 	 	 	5.3286	 	 	 	4.9679	 	 	 	4.1964	 	 	 	4.1964	 
	$75.00
	 	 	 	6.9724	 	 	 	6.3345	 	 	 	5.6741	 	 	 	4.9369	 	 	 	4.4009	 	 	 	3.1663	 	 	 	2.6043	 
	$85.00
	 	 	 	6.7617	 	 	 	6.1448	 	 	 	5.4866	 	 	 	4.7234	 	 	 	4.0772	 	 	 	2.6763	 	 	 	1.0357	 
	$95.00
	 	 	 	6.5003	 	 	 	5.9161	 	 	 	5.2814	 	 	 	4.5306	 	 	 	3.8515	 	 	 	2.4300	 	 	 	0.0000	 
	$105.00
	 	 	 	5.6807	 	 	 	5.1338	 	 	 	4.5328	 	 	 	3.8146	 	 	 	3.1465	 	 	 	1.7894	 	 	 	0.0000	 
	$115.00
	 	 	 	5.0320	 	 	 	4.5234	 	 	 	3.9602	 	 	 	3.2839	 	 	 	2.6493	 	 	 	1.3949	 	 	 	0.0000	 
	$135.00
	 	 	 	4.0727	 	 	 	3.6376	 	 	 	3.1496	 	 	 	2.5626	 	 	 	2.0169	 	 	 	0.9813	 	 	 	0.0000	 
	$160.00
	 	 	 	3.2553	 	 	 	2.9044	 	 	 	2.4983	 	 	 	2.0110	 	 	 	1.5699	 	 	 	0.7490	 	 	 	0.0000	 
	$185.00
	 	 	 	2.6732	 	 	 	2.4030	 	 	 	2.0625	 	 	 	1.6549	 	 	 	1.2951	 	 	 	0.6206	 	 	 	0.0000	 
	$225.00
	 	 	 	1.9934	 	 	 	1.8614	 	 	 	1.5988	 	 	 	1.2842	 	 	 	1.0144	 	 	 	0.4899	 	 	 	0.0000	 
	$275.00
	 	 	 	1.5891	 	 	 	1.4152	 	 	 	1.2136	 	 	 	0.9755	 	 	 	0.6981	 	 	 	0.3728	 	 	 	0.0000	 
	$325.00
	 	 	 	1.2560	 	 	 	1.1220	 	 	 	0.9648	 	 	 	0.7785	 	 	 	0.5598	 	 	 	0.2996	 	 	 	0.0000	 
	$400.00
	 	 	 	0.9190	 	 	 	0.8247	 	 	 	0.7120	 	 	 	0.5775	 	 	 	0.4179	 	 	 	0.2242	 	 	 	0.0000